Federal Court


Immigration

EXCLUSION AND EXPULSION
Hearing not precluded by removal of claimant from Canada

Refugee claimants were Roma citizens of Hungary who had made unsuccessful refugee claim. Claimants’ motion for stay of removal was dismissed and claimants departed Canada and returned to Hungary in November 2014. Claimants had brought application for judicial review of denial of refugee claim. Minister contended that s. 96 of Immigration and Refugee Protection Act (Can.), required that refugee claimants be outside their country of nationality, and s. 97 of Act required that claimants be physically present in Canada, and therefore application for judicial review should be dismissed on ground that it had become moot. Motion to dismiss on ground of mootness denied; application to be set down for hearing on its merits. Parliament did not intend to preclude court and board from hearing claim for refugee protection after person had been removed from Canada pursuant to s. 48(2) of Act. In absence of express statutory language rights conferred on refugee claimants by Act were not rendered nugatory by performance of Minister’s duty to execute removal order as soon as reasonably practicable. Even if matter had become moot, this was appropriate case in which court should exercise its discretion to deal with matter on its merits. As interlocutory judgment concerned jurisdiction of Refugee Protection Division to reconsider decision after applicant for refugee protection has been removed from Canada was separate, divisible, judicial act, question was certified: Is application for judicial review of decision of Refugee Protection Division moot where individual who was subject of decision has involuntarily returned to his or her country of nationality, and, if yes, should court normally refuse to exercise its discretion to hear it?.

Molnar v. Canada (Minister of Citizenship and Immigration) (Mar. 23, 2015, F.C., Simon Fothergill J., File No. IMM-7227-13) 251 A.C.W.S. (3d) 651.

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