Figurado v. Canada (Solicitor General)

Figurado v. Canada (Solicitor General)
Court (s) Database
Federal Court Decisions
Date
2005-03-10
Neutral citation
2005 FC 347
File numbers
IMM-1070-04
Notes
Reported Decision
Decision Content
Date : 20050310
Docket : IMM-1070-04
Citation : 2005 FC 347
Montréal, Quebec, March 10, 2005
Present : THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN :
FRANCIS SEBAMALAI FIGURADO
Applicant
and
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision dated December 19, 2003, by S. Morgan, Pre-removal risk assessment officer (the PRRA officer), who concluded that the applicant is not a "Convention refugee" nor a "person in need of protection" within the meaning of sections 96 and 97 of theImmigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA) and accordingly rejected his application for protection.
BACKGROUND
[2] The applicant is a Tamil and a citizen of Sri Lanka. The applicant alleges that in January 1999, both he and his boat were taken by the Liberation Tigers of Tamil Eelam (LTTE) and he was released after five days of detention. Thereafter, the applicant alleges that he was picked up by the Sri Lankan army (the army) and subsequently beaten on suspicion of membership in the LTTE. He was released after three days of detention but had to report weekly to the army. Furthermore, the applicant alleges that his boat was stolen and, a short time later, the army arrested him and beat him once again. The applicant fled for Canada after his release by the army.
[3] The applicant made a claim for refugee protection under the Immigration Act, R.S.C. 1985, c. I-2 (the former Act), now repealed, which was rejected in December 1999 by the Convention Refugee Determination Division, Immigration and Refugee Board (the Board) on the basis that he had not established a well-founded fear of persecution at the hands of the army and the LTTE.
[4] Since the rejection of his refugee claim in December 1999, the applicant remained in Canada. In July 2000, the applicant submitted an application for landing as a member of the post-determination refugee claimants in Canada class (PDRCC) under the Immigration Regulations, 1978, SOR/78-172 (the former Regulations), now repealed. However, as of coming into force of the IRPA in June 2002 there had been no determination of whether the applicant was a member of that class. In such a case, subsection 346(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the IRPA Regulations), provides that the "application for landing" is an "application for protection" under sections 112 to 114 of the IRPA and that those sections apply to same.
[5] As it appears from the additional written submissions addressed to the PRRA officer in autumn 2003, the applicant reiterated his desire to be permitted to apply for and to become a permanent resident in Canada and re-alleged his fear of being killed upon return to Sri Lanka because he is a Tamil and he was detained by both the army and the LTTE. He alleged that the circumstances which led to his departure from Sri Lanka in 1999 were virtually the same in 2003 and in many ways more dangerous because his departure from Sri Lanka would now make him an object of suspicion by both the army and the LTTE.
[6] On December 19, 2003, the PRRA officer determined that the applicant would not be subject to a risk of persecution, danger of torture, risk to life or risk of cruel and unusual treatment or punishment if he returned to Sri Lanka (the PRRA decision).
[7] On January 28, 2004, the applicant was notified in person of the negative PRRA decision. He was advised at the same time that the removal order issued against him was now enforceable. Indeed, a Direction to report on Monday, March 1st, 2004, at 6:30 p.m. to the Canada Immigration Centre, Pearson International Airport, was remitted to the applicant on this occasion.
[8] The applicant seeks to have the PRRA decision set aside and asks that the matter be remitted for redetermination before a different officer. However, in the meantime, on February 16, 2004, this Court dismissed the applicant's motion requesting a stay of the enforcement of the removal order until the present judicial review application could be heard and decided. The Motions Judge considered there was no serious issue raised. The applicant has since been removed from Canada. That said, on September 17, 2004, the Applications Judge granted leave for judicial review.
MOOTNESS ISSUE
[9] Subsection 48(2) of the IRPA provides that a removal order is "enforceable" if it has come into force and is not stayed. Indeed, the removal order is "enforced" where the foreign national departs from Canada. That said, the principal effect (but not necessarily the only one) of a positive PRRA officer's determination is to stay the execution of a removal order (section 114 of the IRPA; paragraph 232(d) of the IRPA Regulations). In the case at bar, following the dismissal of his refugee claim, the conditional removal order made against the applicant became enforceable. However, by virtue of section 232 of the IRPA Regulations, the removal order was "stayed" pending the determination of his PRRA application. That said, the PRRA decision in this case was negative and this Court subsequently refused to stay the execution of the removal order. As a preliminary issue, due to the applicant's removal from Canada, I must therefore decide if the present application is moot and in the affirmative, whether I should exercise my discretion to hear it (Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342).
Parties' positions
[10] Counsel for the applicant maintains the position he originally took in February 2004 when the stay motion was argued, namely that the applicant's removal would render his judicial review moot. That being said, he nevertheless invites the Court to exercise its discretion to hear and decide the matter. In September 2004, another judge of this Court granted leave. Counsel submits, in this regard, that the underlying substantive issue of the PRRA decision - whether or not the applicant faces risk in Sri-Lanka - remains in dispute between the parties and continues to create an adversarial context. Moreover, it is submitted that the need to conserve judicial resources does not weigh heavily against the exercise of discretion in this case. Finally, the issues in this case are those of a regular judicial review and do not threaten the Court's proper function as an adjudicative rather than law-making institution.
[11] If this Court where ultimately to determine that the PRRA officer made a reviewable error, counsel for the applicant further submits that the Court should set aside the impugned decision and order the redetermination of the PRRA application with proper directions to the respondent. Otherwise, the redetermination may prove to be meaningless in view of the fact that the applicant may still be at risk in Sri Lanka. In this respect, while counsel recognizes that the IRPA does not empower the Court with precise authority to order the respondent to return someone to Canada after a removal order has been legally enforced, it is nevertheless submitted that either under subsection 18.1(3)(b) of the Federal Courts Act, R.S.C., 1985, c. F-7 (the Federal Courts Act) or the Court's inherent jurisdiction, this Court possesses a broad power to make all necessary orders and directions to ensure that redeterminations are meaningful. This includes the power to order the respondent to return the applicant to Canada, and this, possibly at public expense (Freitas v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 432 at para. 29 (F.C.T.D.); Ramoutar v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 370 (F.C.T.D.) at para. 17; Lazareva v. Canada (Minister of Citizenship and Immigration), 2004 FC 1019, [2004] F.C.J. No. 1245 (F.C.) (QL) at paras. 19-22; Lazareva v. Canada (Minister of Citizenship and Immigration), 2004 FC 1372, [2004] F.C.J. No. 1661 (F.C.) (QL) at paras. 11-13).
[12] The respondent takes a somewhat different position. Counsel submits that an application for judicial review of a negative PRRA decision is not moot where an applicant has been removed before a final decision is rendered on the judicial review application challenging same; Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261, [2004] F.C.J. No. 1200 (F.C.A.) (QL) at para. 20; Kim v. Canada (Minister of Citizenship and Immigration), 2003 FCT 321, [2003] F.C.J. No. 452 (F.C.T.D.) (QL). In the case at bar, the applicant was unsuccessful on his stay motion in March 2004. The Motions Judge found that there was no serious issue and the applicant was returned to his country of origin, Sri Lanka. If, however, this Court were to ultimately accept the arguments made by the applicant and set aside the PRRA decision, it indeed has jurisdiction to order a redetermination of that PRRA decision.
[13] Counsel for the respondent further submits that the IRPA prescribes the specific circumstances where a person is entitled to come into or return to Canada. The applicant is already outside of Canada and there is no legislative or regulatory provision upon which this Court could order the return of the applicant for the purposes of redetermination if this judicial review application is successful. Indeed, right now the applicant has no right to return to Canada "unless authorized by an officer or in other prescribed circumstances" (subsection 52(1) of the IRPA). Except for the case mentioned at paragraph 42(b) of the Act (inadmissible family member), a deportation order obliges the foreign national to obtain a written authorization in order to return to Canada at any time after the deportation was enforced (subsection 226(1) of the IRPA Regulations). Accordingly, the respondent denies any power under subsection 18.1(3) of the Federal Courts Act to order the return of the applicant to Canada either for the purpose of the redetermination itself or if the redetermination proved successful.
[14] That being said, despite the fact that the removal order has been legally been enforced, counsel for the respondent nevertheless submits that there is no legal impediment by having a redetermination of the applicant's PRRA done while the applicant remains in Sri Lanka. Therefore, if following a redetermination eventually ordered by the Court, the PRRA application is subsequently allowed and refugee protection is conferred to the applicant by a PRRA officer, Citizenship and Immigration Canada (CIC) would facilitate his entry into Canada (subsection 18(1) of the IRPA). The applicant would then be entitled to apply for permanent residence in Canada (subsection 21(2) of the IRPA). In this context, to the extent a second PRRA assessment is positive, counsel submits that an order of the Court to refer the matter back for redetermination does ultimately have some practical effect, although the Court's power to make directions is somewhat limited in this case. Accordingly, the respondent contests the applicant's central premise that a PRRA becomes nugatory once removal has been effected. It follows that the judicial review of the PRRA is not entirely academic in the respondent's view.
Jurisprudence of this Court and the Federal Court of Appeal
[15] The jurisprudence of this Court and the Federal Court of Appeal is not unanimous on the question of whether the removal of a person from Canada effectively renders an application for judicial review moot or renders nugatory any ensuing remedy the Court would be allowed to make under subsection 18.1(3) of the Federal Courts Act. The following decisions are illustrative of the variety and complexity of the opinions (sometimes divergent) that have been expressed on this matter. As will be seen below, many of these decisions have addressed, at a preliminary stage, the issue that removal may render an application moot and whether a stay ought to be granted in such a case.
[16] In Toth v. Canada (Minister of Employment and Immigration), 86 N.R. 302, [1988] F.C.J. No. 587 (F.C.A.) (QL), the applicant, a permanent resident of Canada who had been found to be inadmissible on grounds of serious criminality, was asking the Federal Court of Appeal to stay the execution of a deportation order issued against him pending the determination of his appeal. Same was made against the decision of the Immigration Appeal Board which had dismissed his application to reconsider its previous decision to the effect that the deportation order should be executed as soon as reasonably practicable. Finding that the tri-partite test (serious issue, irreparable harm and balance of convenience) was met, the Federal Court of Appeal ultimately stayed the execution of the deportation order. However, as a preliminary question, the Federal Court of Appeal had to decide first whether it had the power to order a stay. At that time, the authority of the Court to stay the execution of the impugned decision or a related order (such as a deportation order) was still uncertain in view of the fact that precise legislative authority (such as the power now found in section 18.2 of the Federal Courts Act) was absent in the former Federal Courts Act, R.S.C. 1970, c. 10. The Federal Court of Appeal reaffirmed that it had an implied jurisdiction to stay the execution of a deportation order "where the appeal would otherwise be rendered nugatory" (New Brunswick Electric Power Commission v. Maritime Electric Company Limited and National Energy Board, [1985] 2 F.C. 13 (F.C.A.)).
[17] It was determined in Toth, supra, that if the applicant was deported, irreparable harm would result as there would be a reasonable likelihood that the family business would fail and that his immediate family as well as others who were dependent on the family business for their livelihood would suffer. However, I note that the fact that the "appeal would otherwise be rendered nugatory", while a necessary implication of the Federal Court of Appeal's reasoning to assume jurisdiction in Toth, supra, it is not later expressly mentioned in Heald J.A.'s reasons (which were endorsed by the two other members of the Federal Court of Appeal) as a specific factor going to the establishment of irreparable harm. That said, Robertson J.A. held, in Suresh v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 206 (F.C.A.) that the loss of the benefit of an application can amount to irreparable harm within the meaning of the tri-partite test in Toth, supra, and noted at paragraph 16, that "the only reason the Ontario courts have been prepared to entertain concurrent proceedings stems from the fact that the denial of injunctive relief would render the proceedings in the Federal Court moot".
[18] Indeed, in a number of decisions of this Court subsequent to Toth, supra, but prior to Suresh, supra, where the underlying judicial application would otherwise be rendered nugatory, it had already been judicially understood that this can constitute "irreparable harm" depending on the particular circumstances. For example, in De Medeiros v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 11 (F.C.T.D.) (QL), Nadon J. (as he then was) stayed the execution of a deportation order issued in circumstances similar to Toth, supra, until such time as this Court had rendered its decision with respect to the applicant's application for leave and for judicial review of the decision of the Immigration and Refugee Board Appeal Division (the Appeal Division) pursuant to which the Appeal Division had refused to reopen the applicant's appeal. In this case, it was noted that the equitable jurisdiction to reopen an appeal existed as long as a deportation order had not been executed. Deportation would eliminate the equitable jurisdiction of the Appeal Division. Therefore, in Nadon J.'s opinion, the applicant "would, no doubt, suffer irreparable harm".
[19] In Hosein v. Canada (Minister of Employment and Immigration), 53 F.T.R. 86, [1992] F.C.J. No. 226 (F.C.T.D.) (QL), this Court dismissed an application for an order staying an inquiry before an immigration adjudicator pending determination of an application for leave to commence judicial review proceedings. In that case, the respondent was contesting the Court's jurisdiction under section 18.2 of the Federal Courts Act, to order a stay, which, it was submitted, was limited to circumstances where leave to commence proceedings for judicial review had indeed been granted. This argument was not accepted by the Court. Hosein, supra, is consistent with the approach taken in Toth, supra, and stands for the general proposition that the Court's jurisdiction to order a stay is not limited by section 18.2 of the Federal Courts Act or by the necessity to apply for leave to seek judicial review, particularly where the issue raised in an application for leave is arguable, but would be moot or the jurisdiction of the Court would be rendered nugatory by failure to grant a stay. That said, in Hosein, supra, the Court considered that the applicant had not proved that irreparable harm would automatically result, as the tribunal's hearings had not yet been concluded and the applicant would still have the opportunity to seek judicial review when they were concluded. In this regard, MacKay J. noted:
In this case I am not persuaded that if proceedings of the tribunal are not now stayed, the opportunity for the Court to review the proceedings of the tribunal will be lost or that jurisdiction in relation to judicial review will be rendered nugatory. Further steps in the process of consideration of the applicant's situation under the Immigration Act are required before he could be excluded from Canada and the opportunity for judicial review, now sought by the application for leave filed, can proceed in the ordinary course. If that process is not completed before steps are taken to remove the applicant from Canada, he may at that time apply for leave, if necessary, to stay implementation of those procedures pending disposition of the application for leave, and any judicial review proceedings arising from that application if granted.
(My emphasis)
[20] In Ramoutar, supra, the applicant had been deported prior to the date his judicial review application was heard by the Court. He was seeking to quash the decision rendered by an immigration officer not to refer his request to the Governor in Council for an exemption on humanitarian and compassionate (H & C) grounds from the requirement to apply for landed immigrant or permanent resident status from outside of Canada. The refusal letter stated that there were reasonable doubts as to the bona fide character of the applicant's marriage to a Canadian citizen, and that he had provided information to the Immigration and Refugee Board, Appeal Division, contradictory to that provided to immigration counsellors. The applicant was alleging that the respondent had applied the wrong standard of proof and that there had been a denial of procedural fairness. Those grounds of review proved ultimately to be well founded. That said, during submissions, counsel for the respondent argued that the entire matter was moot since the applicant had already been deported from Canada. However, the Court considered that a decision decided by referring to the wrong standard of proof and without affording the applicant procedural fairness, could potentially prejudice the applicant in the future since it was now part of the applicant's record for immigration purposes. There, the immediate prejudice did not flow from the fact that removal had been legally enforced, but from the fact it would be more difficult for the applicant to re-enter Canada or re-apply as a permanent resident. This reasoning is not applicable in the case of a PRRA assessment which necessarily involves a change of circumstances from a previous assessment made by the Board or another PRRA officer.
[21] In Ramoutar, supra, Rothstein J. (as he then was) further remarked at paragraphs 15 and 16 of his decision:
... The deportation of an individual from Canada, while having negative consequences to the individual, does not eliminate all rights that may accrue to him under the Immigration Act Those rights should not be adversely affected by a decision made by application of the wrong standard of proof and without affording the applicant procedural fairness. I therefore find that this case is not moot.
Even if the case were moot, I would exercise my discretion to decide it. The adversarial relationship between the parties continues. There are collateral consequences to the applicant if the decision appealed from is allowed to stand. And this is not a case in which a decision by this Court could reasonably be considered to be an intrusion into the functions of the legislative branch of government.
(My emphasis)
[22] However, Rothstein J. did not specify precisely the nature of such "rights that may accrue" under the former Act to an individual who is deported from Canada. That said, as was recognized by the Supreme Court of Canada in Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711 at paragraph 27 "Parliament has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada". It was done in the IRPA. The "accrued rights" doctrine is difficult to apply in an immigration context. In this regard, no person other than a Canadian citizen and an Indian registered under the Indian Act, R.S.C. 1985, c. I-5 has an absolute right to enter and remain in Canada. The right of a foreign national, permanent or temporary resident, or of a protected person to enter and remain in Canada is subject to the particular conditions imposed by the IRPA; one being that such persons are not inadmissible on one of the grounds enumerated in the IRPA. Moreover, pursuant to subsection 52(1) of the IRPA, if a removal order has been enforced, the foreign national shall not return to Canada, "unless authorized by an officer or in other prescribed circumstances." The question therefore becomes whether an application for judicial review of a negative PRRA decision becomes moot when the applicant's removal order has been legally enforced. In my opinion, this question is distinct from the question of whether or not the difficulties experienced by the applicant in conducting litigation from outside Canada constitute irreparable harm for the purpose of seeking a stay of the removal order. The applicant may well be ably represented by counsel while he is outside Canada, but perhaps, the eventual granting of his application for judicial review will not necessarily serve a useful purpose. It is interesting to note that rights that may accrue from the making of an application for protection are somewhat limited in the case of an applicant who voluntarily leaves Canada, when the applicant's removal order is enforced under section 240 or the applicant otherwise leaves Canada. In such a case, pursuant to paragraph 169(b) of the IRPA Regulations, the application for protection "is declared abandoned". This is because the applicant is not legally allowed under the IRPA or the IRPA Regulations to return to Canada "unless authorized by an officer or in other prescribed circumstances".
[23] The "forced" return of a removed applicant to Canada by judicial discretion was possibly "hinted" at by this Court in Ramoutar, supra, where Rothstein J. stated: "I do not contemplate that the applicant must be returned to Canada for the purposes of the redetermination. This may be carried out on the basis of written submissions, facsimiles or other communications without the necessity of personal attendance by the applicant." By making this comment, the applicant's counsel suggested that Rothstein J. somewhat considered that the Court may have the power to order the applicant's return had it been necessary. As we will now see, this particular point was directly addressed in the next case.
[24] In Freitas v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 432, the Court ultimately set aside a decision of the Board finding that the applicant was excluded from being a Convention refugee under Article 1F (c) of the United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6 by reason of the relationship of the conspiracy for which he was convicted to drug trafficking. In the meantime, the applicant had already been removed from Canada and deported to Venezuela by the Minister. As in the present case, removal was enforced by the respondent after this Court had denied the applicant's application to stay the removal order issued against him. That said, the Court subsequently decided that the Board had erred in law in finding the applicant to be excluded from consideration as a Convention refugee in light of the subsequent decision rendered by the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. The Court decided that the application for judicial review was not moot considering that, where the decision under review is based upon an error of law, the deportation of an individual does not eliminate all rights that may accrue to him under the former Act. Reference was made in this regard to Ramoutar, supra.
[25] Moreover, the Court decided in Freitas, supra, that it was not prepared to provide a meaningless remedy in the form of a reference back to the Board for redetermination; that could only be a determination that the applicant is not a Convention refugee because he is not outside the country of his nationality. In this respect, Gibson J. wrote at paragraphs 29, 30, 36 and 44:
... In the absence of express words on the face of the Act requiring me to do so, I am not prepared to read the right conferred on the applicant herein by subsection 82.1(1) of the Act in such a manner that it is rendered nugatory by the performance by the respondent of her duty to execute a removal order as soon as reasonably practicable. Nor am I prepared to have the applicant's right indirectly rendered nugatory by the rendering of a decision of this Court that confers a meaningless right to a redetermination by the CRDD. I determine this application not to be moot in that it continues to present a live controversy. I am satisfied that this conclusion is consistent with the decision of Rothstein J. in Ramoutar, supra.
If I am wrong in determining that a live controversy continues to exist on the facts of this matter, the quotation from Borowski that appears earlier in these reasons makes it clear that I nonetheless have a discretion to depart from the general policy of refusing to hear a matter that is moot...
(...)
... It was not in dispute before me that if I were to determine this matter in favour of the applicant, I have the authority to order the respondent to return the applicant to Canada, at the respondent's expense, in order to render a new determination by the CRDD meaningful. Whether or not such an order would be required is a question that I will turn to later in these reasons.
(...)
I will grant relief in essentially the following terms: this application for judicial review is allowed. The decision of the Convention Refugee Determination Division with respect to the applicant is set aside and this matter is remitted to the Immigration and Refugee Board for redetermination. If the Immigration and Refugee Board determines it necessary that the applicant again appear before the CRDD to allow it to comply with this order, and so advises the respondent, then the respondent is ordered to forthwith make her best efforts to return the applicant to Canada at the respondent's expense. If the Immigration and Refugee Board, without requiring the return of the applicant and working on the assumption that the applicant is in Canada when that is not in fact the case, determines the applicant to be a Convention refugee as against Venezuela, then the respondent is ordered to forthwith make her best efforts to return the applicant to Canada at the respondent's expense.
(My emphasis)
[26] Gibson J. did not state what authority specifically allowed him to make the above order. However, it is apparent from the reasons given in Freitas, supra, that it was not disputed by the parties that the Court could order the Minister to return the applicant to Canada, at public expense, in order to render a new determination meaningful. Today, the respondent is not ready to make such a concession. There are a number of decisions of the Federal Court of Appeal that suggest that the Court's general power to make directions under subsection 18.1(3) of the Federal Courts Act is somewhat more limited. Particularly if the declaration or the remedy in question would indeed have the effect of conferring Refugee status or protection, or of fettering the Minister's discretion in cases where an application to remain in Canada has been made on H & C grounds. (Canada (Minister of Employment and Immigration) v. Sharbdeen, [1994] F.C.J. No. 371 (F.C.A.) (QL) at para. 7; Canada (Minister of Citizenship and Immigration) v. Forde, [1997] F.C.J. No. 310 (F.C.A.) (QL) at paras. 9 and 10; Turanskaya v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 254 (F.C.A.) (QL) at para. 6; Rafuse v. Canada (Pension Appeals Board), 2002 FCA 31, [2002] F.C.J. No. 91 (F.C.A.) (QL) at paras. 13 and 14; Owusu v. Canada (Minister of Citizenship and Immigration), [2004] 2 F.C.R. 635, 2004 FCA 38, [2004] F.C.J. No. 158, (F.C.A.) (QL) at para. 12; Canada (Minister of Citizenship and Immigration) v. Lazareva, 2005 FCA 39, [2005] F.C.J. No. 186 (F.C.A.) (QL)).
[27] Freitas, supra, was decided under the former Act and before most of the decisions referred to above. It can be said today that the Court's power to order the return of an applicant to Canada is expressly limited by subsection 52(1) of the IRPA, which prescribes in such a case that "the foreign national shall not return to Canada, unless authorized by an officer or in other prescribed circumstances". Therefore, while not expressing a definite opinion on this matter, I am inclined to accept the respondent's argument that the Court has no power to order the respondent to return an applicant to Canada. It is also clear that the Court does not have the power to direct the PRRA officer to accept the applicant's application for protection, unless, the negative PRRA decision was perhaps based on some determinative error of law.
[28] In Melo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 403 (F.C.T.D.) (QL), the Court accepted to stay the execution of a deportation order issued against a permanent resident because of his criminal convictions pending the determination of the judicial review application of his failed request to have the deportation order reconsidered by the Immigration Appeal Division. The approach taken by Pelletier J. (as he then was) is consistent with the definition of irreparable harm accepted both in Toth, supra, and Suresh, supra. Pelletier J. considered that the best interests of the children raised a serious question and raised the possibility of irreparable harm, as this would effectively render the judicial review nugatory. Pelletier J. stated specifically at paragraph 22:
But for the fact that I have found that the serious issue to be tried in the judicial review application is the consideration to be given to the interests of Mr. Melo's children in the application to reopen the appeal, that would be the end of the matter. The application for a stay would be dismissed. But if that is done, the children's interests will be affected prior to a ruling being obtained on the extent to which their interests must be considered. This will effectively render the judicial review nugatory. It is in circumstances similar to these that Robertson J.A. held in Suresh v. Canada [1999] 4 F.C. 206, [1999] F.C.J. No. 1180 that the loss of the benefit of an application can amount to irreparable harm within the meaning of the tri-partite test in Toth. If there is to be any reality to the judicial review application, the status quo must be maintained. While the benefit in question may appear to be one for the children, it is also a benefit for Mr. Melo. I find that the loss of the benefit of the application for judicial review constitutes irreparable harm for the purposes of this application.
(my emphasis)
[29] In Ero v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1276, [2002] F.C.J. No. 1747 (F.C.T.D.) (QL), the factual background somewhat resembles the present case. The only difference is that the negative pre-removal risk assessment was already conducted under the former Act. There, the applicant was seeking the judicial review of a decision of a Post-claim determination officer (PCDO) which had determined under the former Regulations, that the applicant was not a member of the PDRCC class. The matter was heard a few months after the coming into force of the IRPA. The Court found that the application for judicial review was rendered moot by the prior removal of the applicant from Canada pursuant to the removal order.
[30] In this regard, Snider J. noted in Ero, supra:
If I had, in this case, accepted the arguments of the Applicant and set aside the decision of the PCDO and referred the matter back for re-determination, that re-determination would have taken place under s. 199 of the IRPA, which provides as follows:
199. Sections 112 to 114 apply to a redetermination of a decision set aside by the Federal Court with respect to an application for landing as a member of the post-determination refugee claimants in Canada class within the meaning of the Immigration Regulations, 1978.
* * *
199. Les articles 112 à 114 s'appliquent au nouvel examen en matière de droit d'établissement d'une personne faisant partie de la catégorie de demandeurs non reconnus du statut de réfugié au Canada au sens du Règlement sur l'immigration de 1978 et la décision à prendre en l'espèce est rendue sous son régime.
Sections 112-114 of the IRPA relate to the PRRA. Since the Applicant has returned to Nigeria, this Court cannot order a PRRA, which is essentially a risk assessment that takes place prior to an individual's removal from Canada. As a result, the issues related to procedural fairness have become academic. Even if I were to agree with the Applicant's submissions on the procedural fairness issue, the remedy sought by the Applicant could not be granted. As a result, the decision of the Court on the procedural fairness issue will have no practical effect on the rights of the Applicant. Therefore, the first step in the mootness analysis as set out by the Supreme Court of Canada in Borowski v. Canada (A.G.), [1989] 1 S.C.R. 342 has been met.
(...)
The second step of the Borowski, supra, test concerns whether I should exercise my discretion to hear the case. In my opinion, this question should be answered in the negative. In Borowski, supra, the Supreme Court of Canada set out three factors which would justify the exercise of discretion to hear a moot issue: collateral consequences of the decision for the parties; the issue is of a recurring nature, but brief duration (such as an illegal strike); or the issue is one of public or national importance. None of these factors is present in this case. As addressed above, this Court does not have the power to order the Minister to provide the Applicant with a PRRA. In addition, as pointed out by the Respondent, the Applicant does have a pending H & C application, which could involve a risk assessment that is very similar to the PRRA assessment. As a result, the Applicant has an opportunity to receive another risk assessment, regardless of the outcome of this application for judicial review. Consequently, no injustice will be suffered by the Applicant if this application is dismissed on grounds of mootness.
(My emphasis)
[31] It is apparent from the learned judge's comments in Ero, supra, that she assumed that a PRRA, by its very nature, can only take place prior to the removal of an individual from Canada. While not expressly mentioned, it seems that she also assumed that a redetermination of the risk assessment under the new PRRA process, if subsequently ordered by the Court, implied that the applicant was still in Canada. That was impossible since he had already been removed. As can be seen from the reasoning quoted above, no direct mention is made to any "accrued rights" under the former Act. Moreover, while section 199 of the IRPA is referred to, the conclusion reached in Ero, supra, lies essentially on the Court's firm opinion that it does not have legal power to grant the requested remedy.
[32] In Kim, supra, which also presents a similar factual background, except that section 199 of the IRPA did not apply (like in the present case), the Court took a somewhat different position from the one adopted in Ero, supra. In Kim, supra, the applicant was asking this Court to stay her removal from Canada to South Korea pending the determination of her judicial review application attacking the validity of a negative PRRA. The applicant argued that she would suffer irreparable harm by being sent back to Korea because, inter alia, in the event that she were successful on her application for judicial review of the PRRA officer's decision, no remedy would then be available to her at that point. This would render her judicial review application moot. Counsel for the applicant relied on the case of Ero, supra. In distinguishing the facts of that case from Ero, supra, O'Reilly J. remarked at para. 9:
Counsel for Ms. Kim argued that she would suffer irreparable harm in being sent back to Korea because, in the event that she were successful on her application for judicial review of the PRRA officer's decision, no remedy would be available to her at that point. Counsel relied on the case of Ero v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1747, 2002 FCT 1276. There, Snider J. held that the removal of an applicant from Canada had the effect of rendering moot reconsideration of a Post-Determination Refugee Claimants in Canada ("PDRCC") application. That conclusion was based on an interpretation of s. 199 of the Act -- a transitional rule -- and the requirement in s. 112 that an application for protection be made by a person "in Canada." However, that transitional rule has no application here. I see nothing in the Act or the Rules that would interfere with the entitlement of a PRRA applicant, who has been removed from Canada and who is successful on judicial review, to have that application reconsidered.
(My emphasis)
[33] Be that as it may, apparently on a similar background factual situation, in Resulaj v. Canada (Minister of Citizenship and Immigration), 2003 FC 1168, [2003] F.C.J. No. 1474 (F.C.) (QL), decided a few months after Kim, supra, a stay was granted by the Court pending the determination of a judicial review application seeking to set aside a negative PRRA. This time, finding that the applicant had raised a serious issue, O'Reilly J. accepted the applicant's counsel's argument that removal would render nugatory any legal remedy that might ultimately be available to the applicant:
This case involves the question whether the assessment of personal risk to Ms. Resulaj was adequate. Removing her to face that potential risk while the legal issue in her case is explored before the Court would render nugatory any legal remedy that might ultimately be available to her. Such circumstances constitute irreparable harm: Melo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 403 (QL) (