Montréal, Quebec, April 25, 2007
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
CARLOS MARIO GONZALEZ-RUBIO SUESCAN
and
AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] The applicant is a citizen of Colombia who alleges that he would be in danger of torture, be at risk of persecution, or face a risk to his life or a risk of cruel and unusual punishment if removed to his country. However, on March 30, 2006 an immigration officer determined that the applicant was ineligible to make a claim for refugee protection.
[2] The legality of the impugned decision turns on the application of paragraph 101(1)(c) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), which provides that a claim for refugee protection is ineligible to be referred to the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) on the ground that a prior claim by the claimant was determined to be ineligible to be referred to the RPD, or to have been withdrawn or abandoned, which is the case here.
BACKGROUND
[3] The applicant was admitted in the United States on a visitor visa on October 21, 2004 and authorized to remain there until April 20, 2005. He did not make a refugee claim in that country. On February 20, 2006, he presented himself at the Saint-Bernard de Lacolle port of entry on the Quebec-New York border and made a claim for refugee protection alleging that he feared persecution in Columbia because he would be persecuted, recruited or killed by the members of the groups called Autodefensa Unidas de Colombia (AUC) and Convivir, as well as by a man named Jose Ulises Barrios.
[4] On February 21, 2006, an immigration officer determined that his claim was ineligible for referral to the RPD pursuant to paragraph 101(1)(e) of the Act, as he had come directly or indirectly to Canada from the United States, a country designated by the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) under paragraph 102(1)(a) of the Act (the first ineligibility decision). Moreover, the applicant was deemed inadmissible pursuant to subsection 41(a) and paragraph 20(1)(a) of the Act. As a result, an exclusion order was issued against him on February 21, 2006. The order provided that the applicant could not enter Canada without the written consent of the Minister at any time for one year after the enforcement of the exclusion order.
[5] The applicant was removed from Canada and was returned to the United States. It is important to note that the applicant has never challenged the legality of the first ineligibility decision and of the exclusion order issued against him on February 21, 2006.
[6] On February 21, 2006, the applicant was returned to the United States from Canada pursuant to the Safe Third Country Agreement. The same day, he was served a notice to appear charging him as deportable under subparagraph 237(a)(1)(B) of the Immigration and National Act, for having remained in the United States beyond his period of authorized stay, and placed into removal proceedings before an immigration judge pursuant to section 240 of the Immigration and National Act. The applicant was then released on his own recognizance pending a final determination by the immigration judge in his case. At that time, the applicant indicated his intention to make a claim for asylum in the United States. However, the applicant did not appear for his scheduled hearing before an immigration judge on June 13, 2006 and was ordered removed on the same date.
[7] In the meantime, on February 26, 2006, the applicant returned to Canada. He applied for refugee status the next day at the Citizenship and Immigration Canada inland office in Montreal. On March 30, 2006, an immigration officer rendered the impugned decision. This time, the immigration officer determined that the applicant’s claim was ineligible to be referred to the RPD pursuant to paragraph 101(1)(c) of the Act, as the applicant had already presented a prior claim that was determined to be ineligible. The immigration officer also determined that the applicant had entered Canada illegally, as he had not obtained the authorization of an officer as required under subsection 52(1) of the Act. A deportation order was issued on the same day. Again, it is important to note here that the applicant did not contest the legality of the deportation order.
[8] On April 8, 2006, the applicant requested the removal officer to allow him to remain in Canada. He alleged that the United States could no longer be considered a safe third country (since he was no longer eligible to file a claim for protection in that country) and that he feared for his life if he was deported to Columbia. The applicant requested that prior to any removal, he be allowed to file a Pre Removal Risk Assessment (PRRA) application since “the program objective of the PRRA is policy based and rooted in Canada’s domestic and international commitments to the principle of non-refoulement” (letter dated April 8, 2006 addressed by applicant’s counsel to the Canada Border Service Agency (CBSA)). The request for deferral was refused but no application was made against the decision rendered by the removal officer. The applicant did not appear for removal at the assigned date and a warrant for his arrest was issued on April 6, 2006.
[9] On April 13, 2006, the applicant filed a notice of application for leave and judicial review of the impugned decision. The applicant did not seek from the Court a stay of the deportation order pending final determination of the present application. The applicant went underground.
[10] The applicant was arrested on October 19, 2006 and released on conditions at that time. On November 28, 2006, the applicant was notified that he could make an application for protection to the Minister on the ground that he would be at risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment in his country. As explained in the affidavits of Raymond Dubrule and John R. Butt, submitted by the respondent, the applicant became eligible for a PRRA assessment because more than six months had passed since he had left Canada after his first claim for refugee protection was determined to be ineligible.
[11] The application for judicial review in the present case first came before the Court on December 6, 2006, but was adjourned with the consent of counsel in order to allow the applicant and the respondent to file additional evidence and supplementary memoranda of law with respect to the constitutional issue raised by the applicant in his notice of constitutional question filed on November 27, 2006. Moreover, counsel for the applicant indicated that his client would also make a PRRA application.
[12] Indeed, the applicant made a PRRA application sometime in December of 2006. On February 13, 2007, PRRA officer S. Saliba rejected the applicant’s PRRA application on the basis that the applicant would not be subject to a risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment if returned to Colombia (the PRRA decision). The legality of the PRRA decision is now the object of a separate application for leave and judicial review, which was served and filed on March 12, 2007 (see file IMM-1073-07).
[13] The present application came before the Court for a second time on April 3, 2007. In the meantime, the applicant did not file additional evidence on the constitutional issue and did not submit a supplementary memorandum of law. That being said, the respondent filed additional evidence as well as a supplementary memorandum asking, inter alia, that the present application be dismissed on the ground of mootness.
ISSUES RAISED IN THIS PROCEEDING
[14] First, the applicant recognizes that the immigration officer who made the impugned decision on March 30, 2006 correctly applied paragraph 101(1)(c) of the Act. However, the applicant argues that paragraph 101(1)(c) of the Act is of no force or effect in his personal situation, because its application would result in his being deported to Colombia without any adjudication of his claim for protection, in violation of section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter). The applicant asks that the impugned decision be set aside and his file be returned to an immigration officer for a new decision consistent with the Court’s declaration that the impugned provision is of no force or effect in his personal situation. The immigration officer should be further directed by the Court to refer his claim to the RPD and to make a conditional removal order (letter signed by applicant’s counsel dated December 7, 2006).
[15] The applicant argues in his written memorandum of law dated June 2, 2006 that his constitutional right not to be removed and to stay in Canada until his claim for protection can be heard by the RPD is consistent with Canada’s international obligations. Indeed, Canada is committed to the principle of non-refoulement. The applicant contends that in Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177, the Supreme Court of Canada found that asylum seekers in Canada were entitled to the protection conferred by the United Nations Convention Relating to the Status of Refugees. As such, according to the applicant, the prohibition of refoulement applies not only to persons who have been formally recognized, but to all asylum seekers. The applicant submits in his affidavit dated June 1, 2006, that he was denied access to the PRRA program pursuant to paragraphs 112(2)(b) and (d) of the Act; the former because of the first ineligibility decision, and the latter because he was “removed” from Canada on February 21, 2006, and less than six months had passed since that time. In his memorandum of law dated June 2, 2006, the applicant asserts that he “thus became forever ineligible to access refugee protection in Canada because he presented himself on one past occasion at a US-Canada land port of entry seeking refugee protection”. Consequently, paragraph 101(1)(c) of the Act violates section 7 of the Charter by allowing the “presumptive refoulement” of asylum seekers (see memorandum of argument dated June 2, 2006 at para. 55).
[16] For his part, the respondent submits in his various memoranda of law that the applicant’s section 7 rights are not engaged. In support of his position, the respondent refers to a number of cases that have addressed the constitutionality of ineligibility provisions and found that they do not engage section 7 of the Charter (Berrahama v. Canada (Minister of Employment and Immigration) (1991), 132 N.R. 202 (F.C.A.); Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C.R. 696 (F.C.A); Kaberuka v. Canada (Minister of Employment and Immigration), [1995] 3 F.C.R. 252 (F.C.T.D.); Jekula v. Canada (Minister of Citizenship and Immigration), [1999] 1 F.C.R. 266, aff’d (2000), 266 N.R. 355 (F.C.A). However, as a preliminary argument, the respondent submits that the present application for judicial review is moot. There is no need to determine today whether or not the applicant should be constitutionally exempted of the application of the impugned provision. If the applicant seeks further protection, he must challenge the PRRA decision by way of judicial review, which is just what the applicant did last March 13, 2007.
[17] The applicant responds that he did not have the opportunity to have his claim for protection decided by the IRB, which would have held an oral hearing. He submits that the PRRA process is flawed as the procedural rights afforded to applicants for protection pursuant to subsection 112(1) of the Act do not meet the procedural requirements for refugee claimants established in Singh cited above.
[18] Counsel agree that I should dispose of the mootness issue before deciding the constitutional issue, which will require, as the case may be, that another hearing date be set.
MOOTNESS
[19] In Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, the Supreme Court of Canada explained the legal principles governing the doctrine of mootness:
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.
[20] The approach involves a two-step analysis. The first step, also known as the “live controversy” test, is to determine whether the tangible and concrete dispute has disappeared and whether the issue has become academic. In the affirmative, the second step is to decide whether the Court should exercise its discretion to hear the case. The Court will consider, in this regard, the existence of an adversarial context, the conservation of judicial resources and the proper law-making function of the Court. These three factors are general guidelines and in the exercise of its discretion, the Court may attribute more or less weight to each factor and may also take into account any other relevant factor depending on the particular circumstances of the case.
[21] In my view, the application is moot and it is not a case where this Court should exercise its discretion to decide whether the applicant should be constitutionally exempted from the application of paragraph 101(1)c) of the Act.
[22] The fact is that despite the impugned decision, an assessment of risk has been conducted in February 2007 by a PRRA officer.
[23] The PRRA process emerged as a result of jurisprudence that required a timely risk assessment to comply with section 7 of the Charter (Figurado v. Canada (Solicitor General)(F.C.), 2005 FC 347 at para. 40). Indeed, section 112 of the Act provides that subject to certain requirements, persons with no legal status in Canada and who are subject to a removal order such as the applicant may make an application for protection to the Minister on the basis that they are at risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment in their country of nationality. Subsection 113(c) of the Act provides that in coming to their decision, the PRRA officer must consider the application for protection on the basis of sections 96 to 98 of the Act. These are the same sections that are considered by the IRB in the context of a refugee determination.
[24] In both his original written submissions and his reply, the applicant argued that he faced immediate removal from Canada without a prior assessment of the risks he would face in Colombia. In the case of the applicant, a positive PRRA determination would confer refugee status on him. As a result, he would become eligible, pursuant to subsection 21(2) of the Act, to apply for permanent residence.
[25] In the case at issue, the applicant asked for a hearing before the PRRA officer, but as the PRRA officer did not call into question the applicant’s credibility, no hearing was held, pursuant to section 167 of the Regulations. Since this case arises out of a concern that the absence of a risk assessment violates the Charter, any live controversy between the parties has been dissolved by the PRRA decision.
[26] The Court will generally be reluctant to decide cases on a constitutional ground where the dispute could otherwise be resolved (Adviento v. Canada (Minister of Citizenship and Immigration), 2003 FC 1430 at para. 53; Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97 at paras. 6-11; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 11).
[27] The applicant can no longer be removed to the United States. Moreover, the respondent, through his legal counsel, has taken an undertaking before this Court that no attempt will be made to remove the applicant from Canada or deport him to Colombia until a final decision has been rendered with respect to the application for leave and for judicial review made by the applicant against the negative PRRA assessment.
[28] Accordingly, there would be no useful purpose in hearing the matter. If the applicant has any issue with the propriety of the PRRA process, as suggested by the respondent, he can do so in the context of his most recent application for leave and for judicial review (file IMM-1073-07). For the sake of judicial economy, this is a far better procedural option than keeping the present litigation artificially alive, not to mention the potential for conflicting decisions.
[29] In making the present determination, the Court is also sensitive to its role as the adjudicative branch in our political framework. I am also taking into account the past conduct of the applicant. The fact that the legality of the first ineligibility decision, the exclusion order, as well as the subsequent deportation order were not challenged has created legal obstacles to the full assessment of the constitutional issue raised by the applicant. It should also be remembered that, in this case, the applicant has not asked for a general declaration of invalidity of the impugned provision. He has only asked for a constitutional exemption from the application of the impugned provision in his case.
CONCLUSION
[30] The present application must be dismissed on the ground of mootness. An order to that effect shall issue once I have determined whether a question of general importance should be certified by the Court. Accordingly, I direct that within seven (7) days of the issuance of the present reasons for order, the applicant may serve and file a letter proposing any question for certification, together with his representations. The respondent may serve and file a reply within seven (7) days of service of the applicant’s request for certification and representations.
“Luc Martineau”
Judge
Montréal, Quebec
April 25, 2007
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2005-06
STYLE OF CAUSE: Carlos Mario Gonzalez-Rubio Suescan v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: April 3, 2007
REASONS FOR ORDER: MARTINEAU J.
APPEARANCES:
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Mr. William Sloan
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Mr. François Joyal
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SOLICITORS OF RECORD:
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Mr. William Sloan Montréal, Québec
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FOR THE APPLICANT |
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John H. Sims, Q.C. Deputy Attorney General of Canada
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FOR THE RESPONDENT |