Date: 20050106
Docket: IMM-9385-03
Citation: 2005 FC 6
Ottawa, Ontario, this 6th day of January, 2005
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
SIVAKANTHAN PATHMANATHAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Sivakanthan Pathmanathan does not want to return to his native Sri Lanka because he fears persecution by the Liberation Tigers of Tamil Eelam (LTTE). An immigration officer performed a pre-removal risk assessment (PRRA), but found that Mr. Pathmanathan would not be in danger if he were returned to Sri Lanka. Mr. Pathmanathan argues that his PRRA was seriously flawed because it did not take account of developments in Sri Lanka during the five weeks between the date of the officer's analysis and the date Mr. Pathmanathan received it. He asks me to order a new assessment by a different officer.
[2] I can find no basis for overturning the officer's decision and must, therefore, dismiss this application for judicial review.
I. Issue
Is a pre-removal risk assessment amenable to judicial review if it is not completely up-to-date at the time it is delivered to the applicant?
II. Analysis
[3] Mr. Pathmanathan received his PRRA on November 18, 2003. It was dated October 10, 2003. During the intervening five weeks, a state of emergency had been declared in Sri Lanka. In some areas, the fragile cease-fire had given way to escalating violence.
[4] The PRRA officer was aware that conditions were deteriorating in Sri Lanka. The officer noted that there had been sporadic violations of the cease-fire and human rights abuses by the LTTE, but did not believe the peace process in Sri Lanka was in serious jeopardy. Nor did she believe that the applicant himself was at any greater risk of harm because of these developments.
[5] There is no doubt that conditions in Sri Lanka worsened during the relevant time frame. But does that mean the officer's decision should be overturned?
[6] In many cases, there will be a delay between the PRRA officer's decision and the applicant's receipt of it. Sometimes, a delay is necessary to minimize the risk that the applicant will take flight before he or she can be removed. At other times, delay is simply an unwelcome, but inevitable, bureaucratic reality. Without doubt, there are situations where delay prejudices an applicant and appropriate remedies must be available.
[7] In my view, in these circumstances, judicial review of the officer's decision is not the appropriate remedy. True, things can change dramatically in five weeks. For that matter, they can change overnight. But it would be unrealistic to expect PRRA officers to monitor continuously the conditions in all applicants' countries of origin and update their analyses on an ongoing basis. Certainly, they should be expected to ensure that their assessments are reasonably current. On the other hand, however, PRRA applicants must also bear some responsibility for ensuring that their applications are based on present conditions. Applicants can supplement their submissions to the PRRA officer. They may also request a second risk assessment under s. 165 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (see Annex). A second application does not give rise to an automatic stay, but an applicant's removal can be deferred if circumstances justify it. In addition, of course, this Court will order stays of removal in exigent circumstances. No doubt, there will be cases where an officer's assessment is unreasonably stale. Each case must be considered on its own facts and circumstances. I am satisfied, however, in Mr. Pathmanathan's case, that the officer did not err and that Mr. Pathmanathan was not prejudiced by the age of his risk assessment.
[8] I must, therefore, dismiss this application for judicial review. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. This application for judicial review is dismissed;
2. No question of general importance is stated.
"James W. O'Reilly"
Judge
| Immigration and Refugee Protection Act, S.C. 2001, c. 27
Powers of a commissioner
165. The Refugee Protection Division and the Immigration Division and each member of those Divisions have the powers and authority of a commissioner appointed under Part I of the Inquiries Act and may do any other thing they consider necessary to provide a full and proper hearing.
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Loi sur l'immigration et la protection des réfugiés, L.C. 2001, ch. 27
Pouvoir d'enquête
165. La Section de la protection des réfugiés et la Section de l'immigration et chacun de ses commissaires sont investis des pouvoirs d'un commissaire nommé aux termes de la partie I de la Loi sur les enquêtes et peuvent prendre les mesures que ceux-ci jugent utiles à la procédure.
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9385-03
STYLE OF CAUSE: SIVAKANTHAN PATHMANATHAN v. MCI
PLACE OF HEARING: TORONTO, ON
DATE OF HEARING: November 18, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: January 6, 2005
APPEARANCES BY:
Ms. Lani Gozlan FOR THE APPLICANT
Ms. Kareena R. Wilding FOR THE RESPONDENT
SOLICITORS OF RECORD:
MAX BERGER & ASSOCIATES FOR THE APPLICANT
Toronto, ON
MORRIS ROSENBERG
Deputy Attorney General of Canada
Toronto, ON FOR THE RESPONDENT
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