Feher v. Canada (Public Safety and Emergency Preparedness)

Feher v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2019-03-20
Neutral citation
2019 FC 335
File numbers
IMM-1552-17, IMM-3515-16, IMM-3838-15, IMM-3855-15, IMM-591-16
Notes
A correction was made on March 28, 2019. A correction was made on November 26, 2019. A correction was made on February 26, 2020.
Reported Decision
Decision Content
Date: 20190320
Dockets: IMM-3855-15
IMM-3838-15
IMM-591-16
IMM-3515-16
IMM-1552-17
Citation: 2019 FC 335
Ottawa, Ontario, March 20, 2019
PRESENT: The Honourable Mr. Justice Boswell
BETWEEN:
FERENC FEHER,
RICHARD SEBOK AND THE CANADIAN ASSOCIATION OF REFUGEE LAWYERS,
ERIKA HORVATH AND
FERENC TIBOR SALLAI, and
ANIKO HORVATHNE SERBAN
Applicants
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
JUDGMENT AND REASONS
I. Introduction
[1] These applications for judicial review involve a constitutional challenge to a part of the Designated Countries of Origin [DCO] regime established under the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. This Court has previously determined that one aspect of this regime withstands constitutional scrutiny. Other cases have found that the differential treatment of refugee claimants from a DCO is inconsistent with the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
[2] In this case, the Applicants challenge paragraph 112(2) (b.1) of the IRPA on the basis that it infringes subsection 15(1) of the Charter. This paragraph precludes a refugee claimant from a DCO from applying for a pre-removal risk assessment [PRRA] before 36 months have elapsed from the last determination of their risk before the Refugee Protection Division [RPD] or the Refugee Appeal Division [RAD] of the Immigration and Refugee Board [IRB].
[3] In these reasons for judgment, I will first review the procedural history of these five judicial review applications which have been consolidated. From there, I will proceed to provide a general overview of the DCO regime. After that overview, I will identify the issues raised by these applications, and following that I will address the issue of whether the applications have become moot.
[4] The affidavit evidence will then be summarized once the various issues have been identified. The Respondent’s motion to strike certain affidavits or portions of them from the record will be considered after the evidence has been summarized.
[5] The parties’ submissions as to whether paragraph 112(2) (b.1) of the IRPA violates subsection 15(1) of the Charter will be considered after dealing with the Respondent’s motion. If it is determined that there is a constitutional infringement, it will then be necessary to consider what is an appropriate remedy. Lastly, I will consider whether any questions should be certified pursuant to paragraph 74(d) of the IRPA.
II. Procedural History
[6] The individual Applicants in this consolidated matter are all citizens of Hungary and are of Roma descent. They each made a refugee claim in 2011, alleging a well-founded fear of persecution in Hungary based on their Roma ethnicity, and in the case of the Applicant Aniko Horvathne Serban, a fear of gender-based violence. The RPD refused each of their claims.
[7] After the RPD refused their claims, the Canada Border Services Agency [CBSA] served each individual Applicant with a Direction to Report for removal from Canada. A Direction to Report was served on Mr. Sebok and Mr. Feher more than one year (but less than 36 months) after the RPD refused their claims. Ms. Serban and Ms. Horvath were each served with a Direction to Report less than one year after the RPD refused their claims. Ms. Serban failed to appear for her scheduled removal but came to the attention of CBSA again approximately one and a half years later; she was detained and shortly thereafter served with another Direction to Report. All of the individual Applicants requested a deferral of removal. None of their requests for a deferral were granted. They each filed applications for leave and for judicial review of the negative decisions made by various inland enforcement officers. But for the 36-month waiting period applied to DCO nationals by virtue of paragraph 112(2) (b.1), Mr. Sebok, Mr. Feher, and Ms. Serban would have had access to a further risk assessment by way of a PRRA prior to removal.
[8] Ferenc Feher made two requests for his removal to be deferred, resulting in two applications for leave and for judicial review (IMM-3855-15 and IMM-3838-15). In August 2015, this Court stayed Mr. Feher’s deportation until the applications were decided. These two applications were consolidated in September 2015, with IMM-3855-15 designated as the lead file. Leave for judicial review was granted in December 2015. Mr. Feher became eligible for a PRRA on December 31, 2015.
[9] In January 2016, Mr. Feher brought a motion to amend his application for judicial review to include a request for a declaration that paragraph 112(2) (b.1), insofar as it expressly pertains to DCO nationals, be declared to be an unjustified infringement of subsection 15(1) of the Charter and of no force and effect pursuant to section 52 of the Constitution Act, 1982. This amendment was allowed in November 2016.
[10] Also, in January 2016, the Respondent brought a motion in writing to dismiss Mr. Feher’s applications based on mootness since he had become eligible for a PRRA. The Case Management Judge [CMJ or Case Management Judge] for this matter dismissed the motion in an Order dated November 10, 2016 (see: Feher v Canada (Public Safety and Emergency Preparedness), 2016 FC 1259, 277 ACWS (3d) 812 [Feher #1]). She determined that, although the applications were moot, it was appropriate under the second stage of the two-step test for mootness in Borowski v Canada (Attorney General), [1989] 1 SCR 342, 57 DLR (4th) 231 [Borowski], to exercise her discretion and consider the motion on its merits.
[11] The CMJ found, considering the decisions of this Court in Y.Z. v Canada (Citizenship and Immigration), 2015 FC 892, [2016] 1 FCR 575 [Y.Z.] and Canadian Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651, [2015] 2 FCR 267 [Canadian Doctors], there was a clear adversarial context between the parties with respect to the constitutionality of the DCO provisions of the IRPA. With respect to judicial economy, she determined in Feher #1 that:
[23] … it would be perverse to dismiss the current application for judicial review. This would force the Applicant to pursue his remedy of declaratory relief in an action under subs 17(1) of the Federal Courts Act when such an action, if brought earlier, would have been struck on the basis that the relief could be sought in an application for judicial review. That would not only be an unnecessary use of judicial resources, but would also be punitive to the Applicant.
[12] As to whether the Court would be encroaching on the legislative sphere, the CMJ concluded that, but for the finding of mootness because Mr. Feher was PRRA-eligible, there was “no doubt this judicial review would have proceeded to adjudication. Review of decisions that may be unconstitutional is one of the roles of the Court. There is no encroachment on the legislative sphere by allowing this application to continue” (Feher #1 at para 26). The CMJ dismissed the Respondent’s mootness motion.
[13] Richard Sebok and the Canadian Association of Refugee Lawyers [CARL] filed an application for leave and for judicial review in February 2016 (IMM-591-16). This application also challenged the 36-month PRRA bar on the basis that it infringes subsection 15(1) of the Charter. This Court stayed Mr. Sebok’s deportation on February 10, 2016, until the application was determined. Leave was granted in May 2016. The 36-month PRRA waiting period for Mr. Sebok expired on December 19, 2017.
[14] Mr. Feher’s applications for judicial review were scheduled to be heard in March 2016, but they were adjourned and ordered to proceed as specially managed proceedings. As other applicants filed applications questioning the constitutionality of paragraph 112(2) (b.1) of the IRPA, namely, Richard Sebok, Erika Horvath (and her son), and Aniko Horvathne Serban, these were assigned to the CMJ who ordered that they be consolidated in an Order dated June 4, 2018.
[15] Erika Horvath and her son filed their application for leave and for judicial review in August 2016 (IMM-3515-16). They requested that their removal from Canada be deferred on the grounds that paragraph 112(2) (b.1) is unconstitutional, there was a pending application for permanent residence on humanitarian and compassionate [H&C] grounds, and deferral was not in the best interests of the child. After the deferral request was refused, this Court stayed the removal of Ms. Horvath and her son on August 30, 2016, until the application was decided. Leave was granted in December 2016. The 36-month PRRA waiting period for Ms. Horvath and her son would have expired on August 4, 2018, but they were granted permanent residence on H&C grounds in July 2017.
[16] Aniko Horvathne Serban filed her application for leave and for judicial review in April 2017 (IMM-1552-17). Ms. Serban requested that her removal from Canada be deferred on the ground that paragraph 112(2) (b.1) is unconstitutional. After her deferral request was refused, this Court stayed Ms. Serban’s removal on April 6, 2016, until the application was determined. Leave was granted in June 2017. The PRRA bar for Ms. Serban expired on March 5, 2018.
[17] In November 2017, the Respondent filed a motion for an order removing CARL as an applicant in the Sebok application. The CMJ denied the motion to strike CARL as an applicant in an Order dated January 31, 2018. She found that CARL satisfied the three factors for public interest standing set out in Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 at para 37, [2012] 2 SCR 524. In the Order, the CMJ described CARL as follows:
CARL is an association of lawyers and academics with an interest in legal issues related to refugees, asylum-seekers, and the rights of immigrants. It is a legal advocate on behalf of these groups. It engages in public interest litigation on behalf of vulnerable refugees, asylum-seekers, permanent residents and migrants. CARL has been accorded status as an intervener or a public interest litigant many times in the trial and appellate courts of Canada. In both Canadian Doctors and YZ, CARL was granted public interest standing as a party in this Court. CARL has also been granted intervenor status a number of times before the Supreme Court of Canada…
[18] The Respondent also filed in November 2017 identical motions in each of the applications for an order striking the affidavits, or portions of them, filed by the Applicants. The CMJ, in an Order dated February 1, 2018, dismissed the motion to strike. This Order provided that the Respondent’s motion to strike could be brought before the applications judge in due course, and that leave was granted for all the existing affidavits filed in the record to remain until such time as the applications judge otherwise determined.
III. Overview of the Designated Countries of Origin Regime
[19] When Parliament replaced the Immigration Act, 1976, SC 1976-1977, c 52, with the IRPA, subsection 112(2) introduced a PRRA procedure. This subsection allowed (with certain exceptions) persons in Canada who were subject to an in-force removal order and who alleged a risk of torture, risk to life, or risk of cruel treatment or punishment if removed, to apply for a PRRA. This subsection contained no time limitations as to when a PRRA application could be made.
[20] The Balanced Refugee Reform Act, SC 2010, c 8 [BRRA], added a requirement in paragraph 112(2) (b) of the IRPA that a person who had made a refugee claim, or who had previously applied for a PRRA, which was rejected, abandoned or withdrawn, was ineligible to apply for a PRRA unless at least 12 months had passed since the rejection, abandonment or withdrawal.
[21] As part of the reforms enacted by the Protecting Canada’s Immigration System Act, SC 2012, c 17 [PCISA], Parliament introduced the concept of a DCO. The PCISA replaced paragraph 112(2) (b.1) of the IRPA. This new paragraph became effective on December 15, 2012. It constitutes an exception to subsection 112(1), under which a person in Canada may apply for protection if they are subject to an enforceable removal order.
[22] Subsection 112(2) states in relevant part:
Exception
Exception
(2) Despite subsection (1), a person may not apply for protection if
(2) Elle n’est pas admise à demander la protection dans les cas suivants :
…
[…]
(b.1) subject to subsection (2.1), less than 12 months, or, in the case of a person who is a national of a country that is designated under subsection 109.1(1), less than 36 months, have passed since their claim for refugee protection was last rejected — unless it was deemed to be rejected under subsection 109(3) or was rejected on the basis of section E or F of Article 1 of the Refugee Convention — or determined to be withdrawn or abandoned by the Refugee Protection Division or the Refugee Appeal Division;
b.1) sous réserve du paragraphe (2.1), moins de douze mois ou, dans le cas d’un ressortissant d’un pays qui fait l’objet de la désignation visée au paragraphe 109.1(1), moins de trente-six mois se sont écoulés depuis le dernier rejet de sa demande d’asile — sauf s’il s’agit d’un rejet prévu au paragraphe 109(3) ou d’un rejet pour un motif prévu à la section E ou F de l’article premier de la Convention — ou le dernier prononcé du désistement ou du retrait de la demande par la Section de la protection des réfugiés ou la Section d’appel des réfugiés;
(c) subject to subsection (2.1), less than 12 months, or, in the case of a person who is a national of a country that is designated under subsection 109.1(1), less than 36 months, have passed since their last application for protection was rejected or determined to be withdrawn or abandoned by the Refugee Protection Division or the Minister.
c) sous réserve du paragraphe (2.1), moins de douze mois ou, dans le cas d’un ressortissant d’un pays qui fait l’objet de la désignation visée au paragraphe 109.1(1), moins de 36 mois se sont écoulés depuis le rejet de sa dernière demande de protection ou le prononcé du retrait ou du désistement de cette demande par la Section de la protection des réfugiés ou le ministre.
[23] Teny Dikranian, the Director of Citizenship Legislation and Program Policy in the Citizenship Branch of Immigration, Refugees and Citizenship Canada [IRCC], states in her affidavit that one of the main goals of the DCO regime was to shorten the process for making a refugee claim, to produce either a positive decision granting protection or a negative decision leading to removal. Other factors also motivated reforms to the refugee system: it was too slow, there were multiple layers of recourse, the number of claims was increasing, and the backlog of unheard claims was growing.
[24] Before the BRRA was passed, it would take about 19 months after a person made a claim for protection for a decision by the RPD and it would take about four and a half years from the initial claim until removal of a failed refugee claimant. According to Ms. Dikranian, Parliament created a separate procedure for refugee claims made by nationals of a DCO to speed up the processing of all refugee claims. DCO nationals still have access to a PRRA but they must wait longer before they are eligible. Their claims are treated differently under the IRPA and the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations].
[25] Section 109.1 of the IRPA governs how a country is designated. Countries can be triggered for potential designation through either quantitative or qualitative triggers. When this matter was heard, 42 countries had been designated as a DCO. Hungary has been a DCO since the inception of the regime in December 2012. There is no express authority set out in the IRPA for removing a country’s designation, but in November 2014 the Minister approved a process for doing so. This process involves monitoring all DCOs for significant deterioration in country conditions and assessment against various factors. At the time of the hearing of this matter, no DCO has been removed from the list of DCOs.
[26] The legislative provisions which establish the DCO regime contemplate several unique consequences for claimants from DCOs. I will review these consequences in more detail below; but for the moment, the most significant consequences are summarized in the following chart:
[BLANK]
DCO Claimants
Non-DCO Claimants
IRPA and Regulations
Eligible for work permit under R206?
180 days after claim referred to RPD
Immediately after claim referred to RPD
A30(1.1); A32(d); R206(1); R206(2)
Time to RPD hearing?
Within 45 days (port of entry); Within 30 days (inland)
Within 60 days
A100(4.1); A111.1(1)(b); A111.1(2); R159.9(1)
Automatic stay of removal until judicial review decided and any appeals exhausted?
No
Yes, if applying for judicial review of RAD decision, or subsequent appeals to higher courts up to the Supreme Court of Canada
R231(1); R231(2)
Pre-Removal Risk Application bar?
36 months
12 months
A112(2) (b.1); A112(2)(c)
[27] The differential procedures faced by DCO claimants vis-à-vis non-DCO claimants are as follows:
Subsection 206(1) of the Regulations normally allows foreign nationals whose claims are referred to the RPD to obtain a work permit if they cannot support themselves without working and are subject to an unenforceable removal order. However, subsection 206(2) of the Regulations provides that a foreign national from a DCO cannot be issued a work permit unless 180 days have passed since their claim was first referred to the RPD.
Subsection 111.1(2) of the IRPA authorizes the creation of regulations that “provide for time limits [for claimants from DCOs] that are different from the time limits for other claimants” when scheduling a hearing pursuant to subsection 100(4.1) of the IRPA. This has been done by paragraph 159.9(1)(a) of the Regulations, which provides that an RPD hearing for a DCO claimant must be scheduled within 45 days if he or she requests protection at a port of entry, or within 30 days if he or she asks for protection inland. For claimants from non-DCOs, hearings are expected to be scheduled within 60 days no matter where they make their refugee claim (Regulations, paragraph 159.9 (1)(b)). Subject to the availability of counsel, a hearing will be scheduled on “the date closest to the last day of the applicable time limit set out in the Regulations, unless the claimant agrees to an earlier date” (Refugee Protection Division Rules, SOR/2012-256, subsection 3(2) [RPD Rules]). All claimants can apply to change the date of the hearing in exceptional circumstances (RPD Rules, subsections 54(1), 54(4)). However, since 2017 the RPD no longer strictly enforces the shortened timelines set out in the legislation for adjudicating claims by DCO, employing a “first in, first out” system for adjudicating all refugee claims.
Subsection 161(1.1) of the IRPA permits the Chairperson of the IRB to differentiate between DCO and non-DCO claimants when making rules about “the information that may be required and the manner in which, and the time within which, it must be provided with respect to a proceeding before the Board” (IRPA, paragraph 161(1) (c), subsection 161(1.1)). To date, it appears that no rules which make such distinctions have been enacted. Every claimant must submit their basis of claim form and other relevant documents as soon as their claim is referred to the RPD if their claim is made inland, or within 15 days if their claim is made at a port of entry (IRPA, subsections 99(3.1), 100(4), paragraph 111.1(1)(a); Regulations, section 159.8; RPD Rules, section 7). All claimants can also seek extensions of time (Regulations, subsection 159.8(3); RPD Rules, section 8).
Subsection 231(1) of the Regulations grants an automatic stay of removal to refugee claimants who seek judicial review of a RAD decision, but subsection 231(2) prevents DCO claimants from benefiting from such an automatic stay. DCO claimants will not get an automatic stay of removal if they subsequently apply for judicial review. Consequently, unless they can obtain a judicial stay of removal from this Court, DCO claimants may be removed from Canada before their applications for leave and for judicial review are even considered by this Court.
Unless certain exemptions are granted, paragraphs 112(2) (b.1) and (c) of the IRPA bar all refugee claimants from seeking a pre-removal risk assessment until 12 months have passed since their claim for protection was last rejected. DCO claimants, however, must wait 36 months in the same circumstances.
[28] Designation as a DCO also affected the level of government-funded health care that DCO claimants received until the Order Respecting the Interim Federal Health Program, 2012, SI/2012-26, (2012) C Gaz II, 1135, was invalidated in Canadian Doctors. A DCO claimant was precluded from bringing an appeal to the RAD until paragraph 110(2) (d.1) of the IRPA was declared to be inconsistent with subsection 15(1) of the Charter and had no force and effect in Y.Z.
[29] In Atawnah v Canada (Public Safety and Emergency Preparedness), 2016 FCA 144, [2017] 1 FCR 153 [Atawnah], the Federal Court of Appeal determined that the prohibition contained in paragraph 112(2) (b.1) against bringing a PRRA application until 36 months have passed after a claim was abandoned did not violate section 7 of the Charter.
[30] It is important to note though, that this Court and the Court of Appeal in Atawnah did not examine the time differential between the 12-month and the 36-month PRRA bars. This Court stated in Atawnah v Canada (Public Safety and Emergency Preparedness), 2015 FC 774, 256 ACWS (3d) 399:
[61] The applicants also say that the 36-month PRRA bar in paragraph 112(2)(b.1) of IRPA is arbitrary. According to the applicants, the rationale behind a 12- or 36-month PRRA bar is that country conditions that have already been assessed are unlikely to change during those timeframes. If no risk assessment has ever been carried out, however, then the conditions in an individual’s country of origin are likely to be the same on the day after their refugee claim was declared to be abandoned as they will be 12 or 36 months hence.
[62] From this is it apparent that what the applicants take issue with is not the length of the PRRA bar, but the fact that there is a bar at all. There is clearly a rational connection between the imposition of a PRRA bar on individuals who have abandoned their refugee claims and the limits that paragraph 112(2)(b.1) of IRPA imposes on the section 7 rights of the applicants.
[Emphases added]
[31] In this case, the time differential in eligibility for a PRRA is being raised directly.
IV. Issues
[32] Before identifying the issues to be addressed, it deserves note that this case is, conceptually, distinguishable from Y.Z. In that case, the DCO claimants were being entirely denied a right to appeal to the RAD, while non-DCO claimants had that right. In this case, the DCO claimants do have a right to apply for a PRRA but their right to do so is delayed and denied for two years longer than non-DCO claimants. The fundamental question in this case, therefore, is whether this distinction and denial runs afoul of subsection 15(1) of the Charter.
[33] The issues to be addressed are as follows:
Are the applications for judicial review moot?
Should the impugned affidavits be struck out in whole or in part?
What is the standard of review?
Is paragraph 112(2) (b.1) of the IRPA, insofar as it pertains to nationals from a DCO, inconsistent with subsection 15(1) of the Charter?
If so, is paragraph 112(2) (b.1) of the IRPA justifiable under section 1 of the Charter?
If paragraph 112(2) (b.1) of the IRPA is unconstitutional, what is an appropriate remedy?
What questions, if any, should be certified?
[34] I turn now to deal with the first issue.
V. Are the Applications for Judicial Review Moot?
[35] With the passage of time, each of the individual Applicants has now jumped over the 36‑month PRRA bar. Mr. Feher was the first on December 31, 2015; Mr. Sebok became eligible on November 4, 2017; Ms. Serban was the last on March 8, 2018 (Ms. Horvath and her son would have been eligible on August 4, 2018, but they were granted permanent residence based on H&C factors in July 2017). At the time of Feher #1, only Mr. Feher was eligible to apply for a PRRA.
[36] The Respondent says all the applications for judicial review are now moot because the factual basis upon which they were brought has disappeared, no adversarial context persists, and the outcomes of the applications will not result in a practical effect on the parties. In the Respondent’s view, mootness is not a static issue but is continuously evolving. The Respondent notes that: “the inapplicability of a statute to the party challenging the legislation renders a dispute moot” (Borowski at para 23).
[37] The Respondent further says I am not bound by Feher #1 as facts have changed, in that all individual Applicants are now eligible for a PRRA. The Respondent urges the Court not to exercise its discretion to decide the case, noting that the record is insular and only deals with a minority in one DCO country when there are numerous DCO countries, and that this weighs against exercising my discretion. The discretion to decide this matter should not be exercised in this case as it would be better to wait for a genuine adversarial context.
[38] The Applicants contend that the Respondent’s motion to dismiss the applications based on mootness is futile. CARL has public interest standing and is not subject to the mootness doctrine and its standing is not being opposed. According to the Applicants, the Court is bound by Feher #1 as it was a final order, and nothing indicates that it was interlocutory. The Applicants say the issue of mootness is res judicata in view of Feher #1.
[39] In the Applicants’ view, Borowski supports the Court hearing this matter because it involves an important constitutional issue, there is a fulsome record, and there is a strong public interest in finding not only an answer to the question of whether the three-year PRRA bar violates subsection 15(1) of the Charter, but also in not allowing a potentially unconstitutional provision to persist. The Supreme Court of Canada stated in Borowski that the doctrine of mootness “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” (at para 15). This involves a two-step analysis: “First, it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case” (Borowski at para 16).
[40] Accordingly, in a case where there is “no longer a live controversy or concrete dispute” the case can be determined to be moot (Borowski at para 26). Even if a case may be moot because there is no longer a live controversy or concrete dispute, it is nevertheless necessary for the Court to determine whether it should exercise its discretion to hear and determine the case on the merits where circumstances warrant.
[41] Three overriding principles are to be considered in this second step of a mootness analysis: (1) the presence of an adversarial relationship (Borowski at para 31); (2) the need to promote judicial economy (Borowski at para 34); and (3) the need for the court to show a measure of awareness of its proper role as the adjudicative branch of government (Borowski at para 40). The Court should consider the extent to which each of these principles may be present in a case, and the application of one or two may be overborne by the absence of the third and vice versa (Borowski at para 42).
[42] The Supreme Court in Borowski identified several instances where a court’s discretion may be exercised to allow it to hear and decide a case which might otherwise be moot. For example, if: (1) there is still the necessary adversarial relationship between the parties even though the live issue or concrete dispute no longer exists (at para 36); (2) the Court’s decision will have practical effect on the rights of the parties (at para 35); (3) the case is one of recurring but brief duration, such that important questions might otherwise evade judicial review (at para 36); or (4) where issues of public importance are at stake such that resolution is in the public interest, though the mere presence of a matter of national importance is insufficient (at para 39).
[43] In view of Feher #1, I agree with the Applicants that the issue of mootness is res judicata. Even though the other individual Applicants did not become PRRA-eligible until after the date of Feher #1, the same considerations and analysis as that conducted by the CMJ apply to them mutatis mutandis. I will, therefore, exercise my discretion to decide this case on its merits.
[44] This case is one which raises an important constitutional question that might otherwise evade judicial review. As the Supreme Court remarked in Borowski: “an expenditure of judicial resources is considered warranted in cases which although moot are of a recurring nature but brief duration. In order to ensure that an important question which might independently evade review be heard by the court, the mootness doctrine is not applied strictly” (at para 36).
[45] The evidence in the record shows that most DCO claimants, as well as most non-DCO claimants, are generally removed from Canada within one year from when their refugee claim has been finally determined (cross-examination of Teny Dikranian, questions 62 to 72 and 149 to 152). This means that most failed refugee claimants will never be able to access a PRRA regardless of whether they are or are not a DCO claimant. It is likely, therefore, (though possible) that the constitutional question raised in this case might otherwise evade judicial review. For this reason, and as there is still an adversarial context, I have determined it is appropriate to determine the matter on its merits.
VI. The Affidavit Evidence
[46] The parties have filed numerous affidavits which contain written testimony and dozens of exhibits. The Respondent seeks an order striking all or parts of eight affidavits filed by the Applicants on the grounds that they are irrelevant, unnecessary, or contain improper opinion evidence.
[47] Before considering the merits of the Respondent’s motion, it is useful to summarize some of the evidence presented by the parties.
A. The Applicants’ Affidavit Evidence
(1) Ferenc Feher
[48] Ferenc Feher was born on October 12, 1985 in Pecs, Hungary. He is one of the individual Applicants in these applications. He came to Canada in June 2011, seeking refuge from ethnic persecution at the hands of the Hungarian Guard as well as the general public in Hungary. He has filed an affidavit dated September 18, 2015, in support of his applications for leave and for judicial review.
[49] Mr. Feher fears returning to Hungary as violence has increased since he left. He says the RPD found every other member of his family to be a refugee, and in his view, this is a strong indication that there was a miscarriage of justice in his claim before the RPD.
[50] Mr. Feher’s hearing before the RPD took place in November 2012. In a decision dated December 31, 2012, the RPD rejected his claim, finding him to be not credible. He applied for leave to judicially review the RPD’s decision, but this was denied as was an application for the RPD to reopen his claim due to a lack of procedural fairness.
[51] In early August 2015, Mr. Feher attended a pre-removal interview at CBSA. He was asked to purchase a non-refundable, one-way ticket to Hungary for travel by August 25, 2015. He was served with a Direction to Report for removal a week before the August 25th deadline. Mr. Feher and his family were deeply agitated by his impending deportation since it was likely they would not be able to see each other again.
[52] When Mr. Feher met with his legal counsel to discuss his concerns about returning to Hungary, he learned that, while almost all unsuccessful refugee claimants have a right to a further risk assessment prior to removal where more than 12 months have elapsed since the IRB last refused the claim, he did not have access to this assessment because he was from a DCO. He says he has seen news articles about the PRRA bar for DCO nationals which state that their refugee claims were bogus, and they were only looking to exploit Canada’s social services. Many of those articles refer directly to Hungarian Roma, and he felt degraded by this rhetoric.
[53] Mr. Feher submitted a deferral request to CBSA on August 18, 2015, with additional documentation sent on the 19th and on the 20th. On August 20, an inland enforcement officer denied the request; later that day, unsure of whether the officer had considered all of the submissions (including those sent earlier in the day), Mr. Feher requested that the negative deferral request be reconsidered. The next day, Mr. Feher filed an application for leave and for judicial review in respect of the denial as well as a motion to stay his removal to Hungary. Later that day, the reconsideration request was denied. Three days later, Mr. Feher filed another application for leave and for judicial review in respect of the refusal to reconsider his deferral request. This Court stayed Mr. Feher’s removal from Canada on August 25, 2015.
[54] Mr. Feher says the pressure and stress of not knowing whether he would be deported was terrible, and he had to say goodbye to all his friends and family and put his affairs in order in Canada. Although these goodbyes proved unnecessary, Mr. Feher states that it was a very expensive process and physically and emotionally exhausting for him.
(2) Richard Sebok
[55] Richard Sebok was born on January 5, 1988 in Nyiregyhaza, Hungary. He fled Hungary in April 2011 and shortly thereafter made a claim for refugee protection in Canada. He details the racism and violence he experienced because he was Roma; and although his uncle and other extended family members have been accepted as refugees in Canada, the RPD found him not to be a Convention refugee in December 2014. After the RPD rejected his claim, he stayed in Canada because he feared returning to Hungry.
[56] Mr. Sebok says he has had difficulty living without status and without a job. In June 2015, he was required to attend at CBSA, which he did, and was told he would have to return the next month. A warrant was issued for his arrest in July 2015 after he failed to appear for a pre-removal interview. On November 10, 2015 he was placed in immigration detention in a maximum-security prison. He says his time in prison was the worst time in his life. He was scared to be in a jail with men who had committed dangerous crimes and he cried a lot.
[57] Mr. Sebok received notice on January 27, 2016 that he would be deported back to Hungary on February 10, 2016. He describes this period as a very difficult time when he would get so anxious, he felt like he had to throw up. CBSA denied his request to defer his removal on February 9, 2016. This Court stayed Mr. Sebok’s removal from Canada on February 10, 2016, and he was subsequently released from immigration detention.
[58] Mr. Sebok reports monthly to CBSA, and he says every time he reports he feels a knot tightening in his stomach as he is not aware what is going to happen. He says when he learned about how he was not eligible for a PRRA until three years had passed from the time when the RPD refused his claim, while others were eligible after one year, he felt discriminated against because he was Roma.
(3) Aniko Horvathne Serban
[59] Ms. Serban was born on December 17, 1965 in Szombathely, Hungary. She left Hungary due to an abusive relationship. She says she was unable to receive state protection as Hungary does not take domestic violence seriously and she is Roma. She arrived in Canada in May 2011 and made a refugee claim which the RPD rejected in March 2015.
[60] Ms. Serban was first scheduled to be removed in June 2015. Fearing return to Hungary and believing nothing could be done, she did not appear for her removal and remained without status in Canada. CBSA issued a warrant for her arrest due to her failure to appear for removal, and in March 2017 CBSA arrested her and placed her in immigration detention. Because she was from Hungary, a country which is on the DCO list, she was unable to apply for a PRRA because 36 months had not elapsed since the date when the RPD rejected her claim.
[61] She was notified on March 27, 2017, that she would be removed four days later, but CBSA cancelled the removal and rescheduled it for April 10, 2017. During this time, Ms. Serban says she was living in total fear: she cried a lot; lost her appetite; began having suicidal thoughts; and had flashbacks about the abuse she suffered from her ex-husband. She would frequently call her lawyer and beg and plead to avoid return to Hungary. Her lawyer explained to her that it was difficult to gather all the necessary information and evidence in such a short amount of time, and that nothing could be guaranteed.
[62] On April 6, 2017 Ms. Serban’s lawyer informed her that this Court had granted a stay of her removal. She describes how she was relieved and, although she was still being detained, she no longer felt despair. On June 26, 2017 she was released from immigration detention.
(4) Erika Horvath
[63] Erika Horvath is another individual Applicant in this case. She was born in Budapest, Hungary on June 21, 1988 and is of Roma ethnicity. She has an 11-year-old son, Ferenc Tibor Sallai, who was also born in Budapest.
[64] Ms. Horvath and her son entered Canada in October 2011. They made a claim for refugee protection about a month after their arrival. In a decision dated August 4, 2015, the RPD found that she and her son were neither Convention refugees nor persons in need of protection. Nearly a year after the RPD’s decision, Ms. Horvath learned she was going to be removed from Canada. Her lawyer filed a request to defer the removal on August 15, 2016. On the same day she filed an application for permanent residence on H&C grounds.
[65] CBSA denied Ms. Horvath’s deferral request on August 18, 2016. One day before her scheduled removal, this Court ordered that her removal be stayed. She describes this period in her life as being very stressful. During this period her son was very sad and was deeply concerned about leaving his father in Canada.
[66] Ms. Horvath informed the Court in July 2017 through an affidavit, that she had been granted permanent residence based on humanitarian and compassionate grounds in July 2017.
(5) Christopher Anderson
[67] Christopher Anderson is an Assistant Professor in the Department of Political Science at Wilfrid Laurier University. He has a lengthy research history in the area of Canadian immigration and refugee policy. His affidavit focuses on identifying historical trends animating Canada’s immigration and refugee policy.
[68] In his view, Canada’s desire to attract some immigrants has always been accompanied by a determination to exclude others, and negative stereotypes often info