QAISAR MUSTAFA KHAN EBRAHEEM MUHAMMAD KHAN MUSTAFA (Minor Applicant) Applicants v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2021 FC 995

Date: 20210924 Docket: T-433-21 Citation: 2021 FC 995 Ottawa, Ontario, September 24, 2021 PRESENT: The Honourable Mr.

Justice Pamel BETWEEN: QAISAR MUSTAFA KHAN EBRAHEEM MUHAMMAD KHAN MUSTAFA (Minor Applicant) Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS [ 1 ] The Applicants, Qaisar Mustafa Khan and his minor son, Ebraheem Muhammad Khan Mustafa, are self-represented and seek to appeal, pursuant to sections 51 and 369 of the Federal Courts Rules , SOR/98-106 [ FCR ], the August 18, 2021, Order rendered by Prothonotary Kathleen Ring which dismissed their application for judicial review on the basis that the remedies sought by the Applicants were either moot or premature. [ 2 ] For the reasons that follow, the appeal is dismissed.

The Applicants have not established that Prothonotary Ring erred in law or committed a palpable and overriding error in her decision. I. Background [ 3 ] Mr. Khan is a Canadian citizen. He claims to be the father of young Ebraheem, who was born in Panama in April 2019. About 10- days following Ebraheem’s birth, in May 2019, Mr. Khan applied for his son’s Canadian passport and citizenship certificate.

A passport was issued to young Ebraheem in June 2019, however his citizenship certificate has yet to be issued. [ 4 ] Frustrated with the delay in having his son’s citizenship certificate issued and faced with what Mr. Khan thought was a deadline of August 17, 2020, to file an application for judicial review in relation to the delays in the issuance of his son’s citizenship certificate, on July 3, 2020, Mr.

Khan submitted to Immigration, Refugees and Citizenship Canada [IRCC] an Access to Information and Privacy request [ATIP request] under the Access to Information Act , RSC 1985, c A-1 [ ATIA ], seeking to obtain the application forms, supporting documents and correspondence sent to and from IRCC regarding Ebraheem’s citizenship certificate application. [ 5 ] On July 21, 2020, IRCC informed Mr. Khan that it would need an additional 60 days to respond to his ATIP request beyond the statutory 30-day time period prescribed by the ATIA .

Not happy with what he perceived to be unnecessary delays and fearing that IRCC was simply looking to stretch matters out so as to jeopardize his possible application for judicial review, Mr. Khan submitted a complaint to the Office of the Information Commissioner of Canada [OIC] on July 22, 2020, that the 60-day extension that IRCC sought to respond to his ATIP request was unreasonable. In addition, Mr.

Khan, sensing what he calls “inherent discrimination at play”, also filed a complaint with the Canadian Human Rights Commission on August 14, 2020; IRCC denied any discrimination in its defence. [ 6 ] Further exchanges continued between Mr. Khan and IRCC and between Mr. Khan and the OIC. Following a series of reminder emails from Mr. Khan, on February 4, 2021, some seven months after his initial ATIP request and well after the 60-day time extension sought by IRCC under the ATIA , IRCC provided Mr. Khan with document disclosure. [ 7 ] Mr. Khan found such disclosure to be incomplete and unsatisfactory.

He wrote to the OIC on March 1, 2021, stating, amongst other things, that documentation was missing from the disclosure package sent to him by IRCC and that improper exemptions to the release of information were being invoked. Mr.

Khan provided what seems to be a table setting out the various issues with the disclosure package and stated the following: " “Summary below reflects IRCC’s illegitimate attempt to conceal important information related to IRCC decisions made ignoring Best Interests of the Child and, in violation of charter of Rights and Freedom.” " [ 8 ] The OIC submitted its final report on March 4, 2021, concluding that the 60-day time extension sought by IRCC so as to respond to Mr. Khan’s ATIP request was indeed unreasonable and that therefore IRCC was " “in deemed refusal pursuant to subsection 10(3) of the [ ATIA ].” " Mr.

Khan’s complaint was granted, although the OIC also noted that IRCC did provide documentary disclosure on February 4, 2021. [ 9 ] On March 9, 2021, the Applicants filed the underlying application for judicial review pursuant to

section 18.1 of the Federal Courts Act , RSC 1985, c F-7 [ FCA ], and

section 41 of the ATIA in respect of the OIC’s decision of March 4, 2021, regarding IRCC’s deemed refusal. The notice of application also alleges that IRCC failed to provide complete disclosure of records and is still withholding essential information. [ 10 ] Around the same time, Mr. Khan made two additional complaints to the OIC regarding his ATIP request, the first alleging that IRCC failed to disclose records and improperly applied exemptions so as to unjustifiably deny access to requested records [Disclosure complaint], and the second alleging that IRCC failed to conduct a reasonable search for records in response to his ATIP request

[Reasonable Search complaint]. [ 11 ] In addition, Mr. Khan has since also filed a series of applications with this Court in relation to his ATIP request and young Ebraheem’s citizenship certificate, being: (

a) on March 24, 2021, an application seeking, inter alia , an Order in mandamus directing the Minister of Citizenship and Immigration to process Ebraheem’s citizenship certificate application (T-521-21); (

b) on March 29, 2021, an application for judicial review in respect of IRCC’s March 1, 2021, letter which, amongst other things, requested that DNA evidence be provided as regards Mr. Khan’s affiliation with Ebraheem. The application also sought a series of orders including a call for an independent enquiry into the conduct of IRCC, the processing of Ebraheem’s mother’s permanent residence application, and an award for, amongst other things, loss of income (T-542-21); and (

c) on June 24, 2021, an application for judicial review regarding the final report from the OIC dated May 25, 2021, regarding the Reasonable Search complaint, which concluded that IRCC did indeed conduct a reasonable search of their files with respect to Mr. Khan’s ATIP request (T-1008-21). [ 12 ] None of the above applications have yet to reach fruition, and the Disclosure complaint is still pending with the OIC. II.

The decision under Review [ 13 ] On June 4, 2021, the Minister filed a motion to strike the Applicants’ notice of application and to dismiss the underlying application for judicial review on the basis that, inter alia , the application was moot as documentary disclosure had already been provided to Mr.

Khan and, to the extent the application alleged incomplete disclosure of records and improper reliance by IRCC on exemptions to disclosure under the ATIA , the application was premature. [ 14 ] On August 18, 2021, Prothonotary Ring granted the Minister’s motion and dismissed the underlying application for judicial review. [ 15 ] Prothonotary Ring concluded that the live controversy underlying the application, being the deemed refusal by IRCC to disclose records, was indeed rendered moot when IRCC provided a response to Mr. Khan’s ATIP request on February 4, 2021.

In addition, the Prothonotary agreed with the Minister that until such time as the OIC rendered its final report as regards the Disclosure complaint, the aspect of the underlying application claiming failure on the part of IRCC to properly disclose records was premature. [ 16 ] The Minister also took issue with the fact that Mr. Khan improperly relied on

section 18.1 of the FCA in challenging the OIC’s final report, however Prothonotary Ring did not regard this to be " “a fatal flaw striking at the root of this Court’s power to entertain the application” " as the notice of application made it clear that Mr. Khan was also relying on

section 41 of the ATIA . [ 17 ] The Applicants now move for an Order quashing Prothonotary Ring’s August 18, 2021, Order, asking the Court to set aside the Order in its entirety. The Applicants also ask this Court to order IRCC to send certified copies of the grounds and reasons for its decisions dated February 4, 2020, February 28, 2020, March 10, 2020, April 17, 2020, and April 29, 2020, regarding young Ebraheem’s citizenship certificate application. III.

Issue and Standard of Review [ 18 ] The sole issue is whether Prothonotary Ring erred in law or made a palpable and overriding error of fact or mixed fact and law in striking the notice of application and dismissing the application for judicial review ( Hospira Healthcare Corporation v Kennedy Institute of Rheumatology , 2016 FCA 215 at paras 66 , 79). [ 19 ] The palpable and overriding error standard is highly deferential.

For an error to be “palpable and overriding”, it has to be obvious and at the very core of the outcome of the case ( Mahjoub v Canada (Citizenship and Immigration) , 2017 FCA 157 at paras 61 to 65 ; Canada v South Yukon Forest Corporation , 2012 FCA 165 at para 46 ). IV. Preliminary Issue [ 20 ] The Minister submits, as a preliminary issue, that Mr. Khan’s affidavit filed in support of his motion record is not admissible. [ 21 ] Affidavit evidence is generally not permitted on an appeal of a prothonotary order ( Shaw v Canada , 2010 FC 577 at paras 8-10 ). The admission of new evidence on a motion under

section 51 of the FCR is exceptional and generally only allowed where it could not have been made available earlier, where it will serve the interests of justice, where it will assist the Court by having an impact on the merits of the appeal, and where it will not seriously prejudice the other side ( David Suzuki Foundation v Canada (Health) , 2018 FC 379 at paras 36-38 ). [ 22 ] The Applicants recognize in their reply submissions that Mr. Khan’s affidavit does not contain new information but simply elaborates on the information that was already available to the prothonotary.

I cannot see how elaboration of evidence previously before the Court can justify the filing of Mr. Khan’s affidavit. As such, I will not consider it in rendering my decision. V. Analysis

[23] I am not persuaded that Prothonotary Ring made a palpable and overriding error in striking the notice of application and dismissingthe underlying application for judicial review. [24] First of all, Prothonotary Ring properly identified the test for striking a notice of application: it must be "“so clearly improper as tobe bereft of any possibility of success”" (Vancouver Fraser Port Authority v GCT Canada Limited Partnership, 2021 FCA 183 at para 6;David Bull Laboratories (Canada) Inc. v Pharmacia Inc., (FCA), [1995] 1 FC 588 at 600 (CA), 58 CPR (3d) 209). [25] Thereafter, Prothonotary Ring properly considered the two-step analysis for mootness laid out in Borowski v Canada (AttorneyGeneral), (SCC), [1989] 1 SCR 342 [Borowski], and determined there to be no live controversy between the parties asregards the OIC’s March 4, 2021, final report and its finding of a deemed refusal to disclose on the part of IRCC.

Disclosure has sincetaken place. [26] As regards the second step of the test for mootness, having taken into account the Borowski factors, Prothonotary Ring stated thatshe could not identify any basis for the exercise of discretion to hear the application notwithstanding that it was moot.

Having reviewedthe matter myself, I must agree. [27] In addition, I agree with the Prothonotary that since IRCC responded to the ATIP request on February 4, 2021, the underlyingapplication would have no practical effect on the rights of the parties (Statham v Canadian Broadcasting Corporation, 2010 FCA 315 atpara 30). [28] In any event, I cannot see how the underlying application for judicial review has any chance of success. With the disclosure materialhaving been provided to Mr.

Khan on February 4, 2021, albeit after the expiry of the requisite time, there is no longer a refusal, whetherdeemed or otherwise, on the part of IRCC to disclose records in line with Mr. Khan’s ATIP request—and without a live “refusal”, thisCourt lacks jurisdiction to hear the matter. As I stated in Constantinescu v Canada (Correctional Service), 2021 FC 229 at paragraph 47: The case law of this Court is consistent to the effect that in the absence of a refusal to disclose and pursuant to

section 41 ofthe ATIA (now subsection 41(1)), this Court does not have jurisdiction to review a decision of a government institution on amatter relating to an ATIA request; the refusal to disclose information is a condition precedent to an application undersection 41of the ATIA (X v Canada (Minister of National Defence) (1991), (FC), 41 FTR 73 at para 10[Re X]).

As Justice Barnes observed in Friesen v Canada (Health), 2017 FC 1152 at para 10 [Friesen], “[w]ithout exception,those decisions have held that the Federal Court can only provide relief to an applicant where there has been an unlawfulrefusal to disclose an identified record”. [29] I also point to the decision of Mr. Justice Dubé in X v Canada (Minister of National Defence) (1991), 41 FTR 16, where he stated atparagraph 10 of his decision: However, as I also informed both parties at the hearing, the Court cannot award a judgment to Mr.

X: no actual refusalremains to be addressed as the deemed refusal was followed by performance, albeit delayed performance. [30] I find that Prothonotary Ring also properly reviewed the case law and assessed the Applicants’ argument that there was in fact acontinuing live issue between the parties, to wit, the adequacy of IRCC’s disclosure package.

The Prothonotary rightly determined thatthis Court cannot rule upon the issue of incomplete disclosure or the improper reliance by IRCC on exemptions or exclusions under theATIA unless and until the OIC has investigated and issued a report with respect thereto (Statham v Canadian Broadcasting Corporation,2010 FCA 315 at para 55; Blank v Canada (Justice), 2016 FCA 189 at para 30 [Blank]). [31] An application for review is premature if it is filed before the OIC has reported on the findings of its investigation into theexemptions and redactions (section 41 of the ATIA; Canada (Public Safety and Emergency Preparedness) v Gregory, 2021 FCA 33 atpara 13; Whitty v Canada (Attorney General), 2014 FCA 30; Blank at para 30).

Here, the Disclosure complaint is still pending, with nofinal report yet issued by the OIC. [32] In short, the Applicants have failed to demonstrate a palpable and overriding error of fact or mixed fact and law or an error in law inProthonotary Ring’s Order. [33] Under the circumstances, I must dismiss the present motion. As to costs, the Minister seeks costs in the amount of $1,000 andsubmits that this appeal is improper, vexatious or unnecessary. I am mindful that Mr. Khan is self-represented, however this should notshield him from a cost award.

All things considered, I find that costs in the amount of $1,000 should be payable to the Minister in thismatter. [34] Finally, when the underlying application for review under

section 41 of the ATIA was instituted, the Respondent was identified as“Immigration, Refugees and Citizenship Canada”. Over time, the name Minister of Citizenship and Immigration creped in, but withoutformal amendment of the style of cause. I would therefore formally order the amendment to the style of cause. ORDER IN T-433-21 THIS COURT ORDERS that: 1. The Applicants’ appeal from the Order of Prothonotary Ring dated August 18, 2021, is dismissed. 2. The style of cause is amended to name the Minister of Citizenship and Immigration as the proper Respondent.

3 . The Applicants shall pay costs to the Respondent fixed in the amount of $1,000. “Peter G. Pamel” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-433-21 STYLE OF CAUSE: QAISAR MUSTAFA KHAN, EBRAHEEM MUHAMMAD KHAN MUSTAFA (MINOR APPLICANT) v THE MINISTER OF CITIZENSHIP AND IMMIGRATION MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES ORDER AND reasons: PAMEL J. DATED: september 24, 2021 APPEARANCES : Qaisar Mustafa Khan For The APPLICANT (ON HIS OWN BEHALF) Katherine Creelman For The RESPONDENT SOLICITORS OF RECORD : Attorney General of Canada Edmonton, Alberta For The RESPONDENT