Docket: IMM-7938-13
Citation:
2014 FC 602
Ottawa, Ontario, June 23, 2014
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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SIVAEESAN THAVACHCHELVAM
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant is a 25-year-old Sri Lankan Tamil.
On April 10, 2012, the Refugee Protection Division [RPD] of the Immigration and
Refugee Board rejected his claim for Convention refugee status. The Court denied
his application for judicial review on January 28, 2013. His applications for
Pre-Removal Risk Assessment [PRRA] and an exemption on the basis of
humanitarian and compassionate grounds were also rejected on September 16,
2013.
[2]
The applicant filed an application challenging
the legality of the PRRA, which is also the object of a judicial review
application (Docket IMM-7417-13).
[3]
In the meantime, the applicant was scheduled to
be removed to Sri Lanka on December 20, 2013. His request for a deferral of the
removal was denied on December 11, 2013 by Law Enforcement Officer, Henry Kwan
[removal officer], leading to the present judicial review application which
challenges the reasonableness of the removal officer’s refusal. However, on
December 18, 2013 Justice Noël allowed the applicant’s motion to stay the
removal pending a final decision on this application for judicial review.
[4]
Justice Noël stated in his Order that “it is in the interest of justice that the present
application be dealt with by a judge of the Court with complete records”. By
order made on March 20, 2014, the present application was heard by the Court on
June 11, 2014 concurrently with the judicial review application challenging the
legality of the negative PRRA decision made earlier on September 16, 2013
(Docket IMM-7417-13). Counsel agree that the present application shall become
moot in the case the Court allows the first judicial review application.
[5]
The respondent opposed the stay motion and emphasizes
that the removal officer was not required to conduct a last minute assessment
unless the allegations could not have been raised earlier. This did not
convince Justice Noël who granted the stay motion. The same argument was made
again by respondent’s counsel in his memorandum of law filed in connection with
the application for judicial review. This is one of those exceptional
circumstances where the Court in the exercise of its judicial discretion should
refuse to let an applicant suffer for the errors of his or her former counsel or
representative (Acevedo v Canada (Minister of Public Safety and Emergency
Preparedness), 2007 FC 401 at paragraph 42). Indeed, the new information
discloses a very strong risk that could expose the applicant, if returned, to
arrest, detention or torture in Sri Lanka based on his suspected links with a
convicted terrorist.
[6]
From December 2007 until his departure from Sri Lanka, the applicant lived with his uncle in Colombo. The applicant registered himself with the
police when he arrived, including stating that he was living with his uncle at
the specific address. The uncle’s son (and the applicant’s first cousin), is a
citizen of the United Kingdom who was arrested on April 3, 2007 at the Colombo
airport on suspicion that he was bringing in telecommunications equipment for
the LTTE. His detention was extended on multiple occasions. In February 2012,
he was formally indicted on two counts of terrorist activities under the Prevention
of Terrorism Act: first, purchasing ten tractors for the LTTE and second,
failing to inform the police about prominent LTTE cadres. He pled guilty to the
first charge and was sentenced on July 23, 2012 to five years in jail. The
second charge was dropped. The applicant visited his cousin twice at the
Magazine prison in Colombo. Each visit was allegedly recorded by the
authorities. However, there has never been any assessment of the applicant’s
fear of being at risk based on the fact that he lived with his cousin’s father
in Colombo at the address given by the cousin to the Sri Lankan authorities,
that his particulars were noted during his visits to his cousin in prison and
that he was detained for four days.
[7]
The Court has decided today to grant the
judicial review application in respect of the September 16, 2013 decision made
by the Pre-Removal Risk Assessment Officer (2014 FC 601). Accordingly, this
application is moot. Thus, it would serve no practical purpose to refer the
request for deferral back to another removal officer for redetermination or to
direct that the removal should be stayed until September 16, 2014 which
corresponds to the one year bar period.
[8]
For all these reasons, the present judicial
review application is dismissed.
[9]
Counsel agree that there is no question of law
of general importance requiring certification by the Court.
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