Date: 20070412
Docket: A-451-06
Citation: 2007 FCA
150
CORAM: LÉTOURNEAU
J.A.
EVANS
J.A.
SHARLOW
J.A.
BETWEEN:
HOMAYOUN
VAZIRI; HASSAN VAZIRI
Appellants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Dealt with in writing without appearance
of parties.
Judgment delivered at Ottawa, Ontario,
on April 12, 2007.
REASONS
FOR JUDGMENT BY: SHARLOW
J.A.
CONCURRED
IN BY: LÉTOURNEAU
J.A.
EVANS
J.A.
Date: 20070412
Docket: A-451-06
Citation: 2007 FCA 150
CORAM: LÉTOURNEAU J.A.
EVANS
J.A.
SHARLOW J.A.
BETWEEN:
HOMAYOUN VAZIRI; HASSAN VAZIRI
Appellants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
SHARLOW J.A.
[1]
The
respondent, the Minister of Citizenship and Immigration, has moved to dismiss
this appeal for mootness. The appellants Homayoun Vaziri and Hassan Vaziri
concede that the appeal is moot, but they argue that the Court should exercise
its discretion to hear the appeal despite its mootness.
[2]
Homayoun
Vaziri is a Canadian citizen. He applied in August of 2003 to sponsor a visa
application by his father, Hassan Vaziri. That sponsorship application was
delayed because the Minister had adopted a policy of setting targets for visa
approvals by class and giving higher priority to sponsorship applications involving
spouses and children. In 2005, Mr. Vaziri sought and was granted leave to
commence an application for judicial review to seek an order compelling the
Minister to render a decision on his sponsorship application. His application
was heard on September 5, 2006 by Justice Snider. She framed the issues as
follows:
1.
In the
absence of regulations enacted under subsection 14(2) of the Immigration and
Refugee Protection Act, does the Minister act without authority in setting
targets for visa approvals by class and establishing procedures that prioritize
sponsored applications within the family class?
2.
Have the
applicants met the test for mandamus?
The application for judicial
review also included a request to convert the application into an action so
that it could be certified as a class action, but that aspect of the
application was not addressed by Justice Snider, I assume because it was not
argued.
[3]
Justice
Snider rendered her decision on September 29, 2006. She concluded that the
Minister had acted lawfully in setting priorities as he had done. She also
concluded that Mr. Vaziri had not made out a case for mandamus because there
had been no undue delay in the processing of Mr. Vaziri’s sponsorship
application, and because there was an adequate alternative remedy (an
application for a temporary resident visa for his father). She was also
satisfied that in any event the application was likely to be processed in early
2007, so that an order of mandamus would have little practical effect.
Justice Snider dismissed the application for judicial review, but certified a
question to permit this appeal to be commenced. The Minister issued a visa to
Mr. Vaziri’s father in February of 2007, rendering this appeal moot.
[4]
In my
view, the Court should not exercise its discretion to hear this moot appeal.
[5]
First, I
am not satisfied that a sufficient adversarial context continues to exist. It
is not suggested that there are any collateral consequences of the decision
under appeal that would affect the rights of Mr. Vaziri or his father. I
appreciate that Mr. Vaziri may have a personal interest in this Court’s
assessment of the legality of the Minister’s policy, but that is not the kind
of adversarial context that can justify hearing a moot appeal. I also
appreciate that Mr. Vaziri’s counsel represents a number of other applicants
whose cases raise the same point. However, although Justice Snider described
this matter as a “test case”, the Minister has not agreed that a successful
appeal in this case would determine those other proceedings. On the contrary,
the Minister asserts, I think correctly, that the mandamus applications in the
other cases would have to be determined on their own facts, even if this Court
were to find that the Minister’s priority policy was not lawful.
[6]
Second, I
am not satisfied that judicial economy would be served by hearing this moot
appeal. Again, that is because each of the other cases would have to be
assessed on its own merits regardless of this Court’s determination of the
legality of the Minister’s priority policy. Counsel for the appellants asserts
that there are as many as 100,000 people who may be affected by this decision.
That may be so, but that means only that there may potentially be a large
number of cases that must each be assessed on its own merits. It does not
assist the appellants in this case.
[7]
For these
reasons, I would allow the motion of the Minister to dismiss this appeal as
moot.
“K.
Sharlow”
“I
agree
Gilles Létourneau J.A.”
“I
agree
John M. Evans J.A. ”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-451-06
STYLE OF CAUSE: HOMAYOUN
VAZIRI; HASSAN VAZIRI v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCE OF PARTIES
REASONS FOR JUDGMENT BY: SHARLOW J.A.
DATED: April 12, 2007
WRITTEN REPRESENTATIONS BY:
Lorne Waldman
|
FOR THE APPELLANTS
|
Marie-Louise
Wcislo
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
Waldman &
Associates
Toronto, Ontario
|
FOR THE APPELLANTS
|
John H. Sims,
Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario
|
FOR THE RESPONDENT
|