CITIZENSHIP AND IMMIGRATION
Status in Canada
Convention Refugees
Judicial review of decision by pre‑removal risk assessment (PRRA) officer dismissing PRRA application of applicant on ground neither “Convention refugee” nor “person in need of protection” within meaning of Immigration and Refugee Protection Act, ss. 96, 97—Applicant citizen of Cameroon— In April 2000, had abortion following pregnancy caused by father’s cousin—After having been admitted to Canada as student, applicant filing application for permanent residence— Application denied as inadequate humanitarian grounds, doubtful she and man met in Montréal had married in good faith—In August 2004, informing Immigration authorities feared persecution, wished to claim refugee status—Refugee application found inadmissible as enforceable deportation order made against her on July 7, 2004—Would fear for physical security, safety if returning to Cameroon—Applicant still in Canada, but hiding from respondent—First issue whether application for judicial review moot—In order to determine whether case moot, live controversy test must be applied, as explained by Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 —Court may exercise discretion, elect to hear application for judicial review moot if circumstances warrant—Second stage considering three “bas[es] upon which this Court should exercise its discretion either to hear or to decline to hear this appeal”—Three bases are: (1) existence of adversarial debate; (2) concern for judicial economy; (3) court must demonstrate measure of awareness of judicial function, not encroach on legislative function—In case at bar, application for judicial review not moot as, by still living in Canada, applicant meets live controversy test—Can still have PRRA decision reviewed even though Pinard J. did not grant stay of the removal order—Function of PRRA officer to determine risks applicant would be exposed to if returning to Cameroon—Since PRRA decision involved considering risks before removal, judicial review possible if applicant not removed from Canada—Court could still review PRRA decision to determine whether reasonable, fair under procedural rules—If decision of PRRA officer unreasonable, open to Court to remedy injustice by allowing application for judicial review—Application for judicial review not moot—Could applicant seek judicial review of PRRA even though without clean hands?—In addition to fact applicant not credible, not demonstrating subjective fear, living in hiding meaning she did not have clean hands—Applicant fleeing immigration authorities as afraid of being deported—Federal Court judge can exercise discretion to refuse to hear application for judicial review— Applicant’s conduct not beyond reproach warranting dismissal of application for judicial review according to clean hands doctrine—Applicant not showing finding of lack of credibility, of lack of subjective fear patently unreasonable— Applicant not credible witness, lacking subjective fear— Application dismissed—Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 96, 97.
Djotsa v. Canada (Minister of Citizenship and Immigration) (IMM‑456‑05, 2005 FC 1475, Teitelbaum, J., order dated 31/10/05, 19 pp.)