Date: 20100318
Docket: IMM-4083-09
Citation: 2010
FC 314
Ottawa, Ontario, March 18, 2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
PURUSOTHAMAN
SIVAPATHAM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION AND
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
[1]
This is
the second PRRA decision on which the Respondents have consented to judgment.
In the first PRRA decision, the consent to judgment was given after leave was granted.
In the present case, consent was given after the matter was sent for a judicial
review hearing. In both cases, the Respondents vigorously opposed all interim
steps as well. The only issue before the Court is the terms of the consent to
judgment.
[2]
The
Applicant is a young Tamil from Northern Sri Lanka. His circumstances are set out in his PIF which outlines
abuse by Sri Lankan military and police forces.
[3]
He entered
Canada via the United
States and having
been subject to the Safe Third Country Agreement, was declared ineligible to
file a refugee claim in Canada. He has asserted his right to
protection through the PRRA process.
[4]
The
Respondents have again had to concede that yet again a PRRA Officer at the Niagara Falls office failed to conduct a
proper PRRA assessment in respect of this Applicant. On reviewing the pleadings
in this case, the Respondents’ concession is more than justified.
[5]
Aside from
seeking an order quashing the PRRA decision, the Applicant asked for a number of
terms to expedite the reconsideration of the PRRA, to also avoid a repetition
of the same sort of errors as in the past by the same office, and to obtain a
symbolic order of costs to “punish” the Respondents for the course of conduct
directed against the Applicant.
[6]
The Court
will issue a direction as to Canadian law to avoid any potential confusion as
to the legal test applicable. While the PRRA Officer appeared to cite the test,
there is some suggestion that he/she became entangled in international concepts
not consistent with Canadian law.
[7]
There has
never been any challenge in either PRRA decision to the credibility of the
Applicant’s personal story. There has been no suggestion that the Applicant’s
personal story is not credible and the new PRRA cannot be used by the
Respondents to seek to challenge his credibility without Court sanction.
[8]
The Court
will not, as requested by the Applicant, refer the matter to the Immigration
and Refugee Board to perform the s. 97 analysis. The proper process is to have
that task performed by a PRRA unit of the Respondents. However, there is reason
to believe that a third reference to the same office raises concerns about the
objectivity of an officer in the Niagara Falls office who may be subject to,
real or perceived, pressure to support the findings of two colleagues which had
been supported by their superiors. Therefore, the reconsideration of the PRRA
will be performed by a PRRA Officer in any unit other than the Niagara Falls office.
[9]
As this
will be the third PRRA based on the same facts, there is no reason not to
expedite that reconsideration. A timetable is set forth in the Order.
[10]
The
Applicant’s request for symbolic costs is denied. There is insufficient
evidence to establish bad faith or similar circumstances constituting “special
reasons” for costs – although there is a sense and scent that that may exist.
As all parties are equal before the Court, to award costs because two decisions
were unsustainable, would create the potential precedent that two unsuccessful
judicial reviews by a claimant would justify costs in those instances. This
would be a result or precedent which is inconsistent with the principle of the
“no cost” scheme of the immigration legislation.
ORDER
THIS COURT ORDERS that:
1. The
judicial review is granted, the PRRA decision is quashed and the matter is
referred back to the Respondents for a reconsideration of the PRRA application,
upon terms set forth in this Order, to be performed by an officer in any office
selected by the Respondents other than the Niagara Falls office.
2. The
reconsideration is to be conducted in a manner consistent with the legal test
for “risk” set forth in Canadian jurisprudence being a “reasonable chance” as
per Adjei v. Canada (Minister of Employment and Immigration) (1989), 7
Imm. L.R. (2d) 169 (F.C.A.).
3. The
reviewing officer shall assume the credibility of the Applicant’s description
of events related to his circumstances unless the Court orders that the
Respondents have substantive grounds for a credibility challenge.
4. The timetable for
the conduct of the reconsideration is as follows:
(a) the
Applicant shall have twenty-one (21) days from the date of this Order to make
any further submissions;
(b) the
Respondents shall within fourteen (14) days thereafter provide the Applicant
with any new evidence which it intends to consider;
(c) the Applicant shall
respond within seven (7) days thereafter; and
(d) the
decision on reconsideration shall issue sixty (60) days after the last of the
above dates subject to any further order of the Court.
5. The
Court shall remain seized of this matter until the new PRRA decision is issued.
“Michael
L. Phelan”
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