Date: 20061110
Docket: IMM-3733-04
Citation: 2006 FC 1370
Toronto, Ontario, November 10,
2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
JASINDAN
RAGUPATHY
Applicant
and
THE
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant, now 24 years old, is a Convention refugee and a
citizen of Sri Lanka of Tamil ethnicity. In January 1999, he became a permanent
resident of Canada. He is now
inadmissible on grounds of serious criminality within the meaning of section 36
of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (the
Act). On March 26, 2004, the Minister’s delegate issued an opinion concluding
that the applicant is a danger to the public in Canada (the Danger Opinion). Consequently, the applicant is subject to
removal from Canada under
paragraph 115(2)(a) of the Act. The principal issue in this application for
judicial review is whether the applicant is entitled to an updated risk
assessment before the Minister proceeds with the applicant’s removal.
Background
The Danger Opinion
[2] In the Danger Opinion dated March 26, 2004, the Minister’s delegate
concluded that the applicant’s continued presence in Canada presented a high level of danger to the public and that this risk outweighed
the small chance that he would be persecuted or tortured if he was returned to Sri Lanka. In reaching his conclusion, the
delegate noted that the conditions in Sri Lanka had improved since 1998 when the applicant fled as a refugee.
The request to defer removal and
undertake a PRRA
[3] On April 16, 2004, the applicant wrote to an Enforcement Officer at
the Greater Toronto Enforcement Centre and requested that she defer the applicant’s
removal from Canada then
scheduled for April 27, 2004 on the basis of a recent change in country conditions:
[…]
The purpose of this letter is to ask that you defer his removal from Canada, which, I understand is presently
scheduled for April 27, 2004. Given the change in the political
circumstances in Sri Lanka over the last 2 weeks, there is new evidence, not
previously considered, of a risk to a young Tamil male such as Mr. Ragupathy,
already recognized by Canada as a Convention refugee in Sri Lanka. We are presently asking the
Minister’s delegate to reconsider the 115(2) danger opinion which relied
largely on the existence of a peace accord, which is now ineffective. […]
[…]
The Minister’s delegate determined that he was no longer at risk in Sri Lanka because of a change in the
political climate since 1998 due to the signing of a peace accord between the
government and the LTTE. Given the election results in early April and the
conflict between factions in the LTTE, it appears that the peace accord is in
jeopardy and the war likely to continue. I have enclosed a number of documents
for your consideration and will be sending more documents in the coming days.
The present list includes the following:
[…]
In
summary, the new documentation indicates that intense fighting has been raging
in the East of Sri Lanka between a faction of the LTTE led by Colonel Karuna
and the main body of the LTTE led by Velupillai Pirabakaran. Thousands of
Tamils in the North and East have now been displaced by this fighting and
scores have been killed.
[…]
These factors were not considered by the Minister’s delegate in
rendering the decision that Mr. Ragupathy was not at risk in Sri Lanka.
This
new evidence indicates a possible return to war as the peace accord dissolves.
Mr. Ragupathy had been recognized as a Convention refugee because of circumstances
which are now recurring. I ask that you defer removal until an adequate and
up to date risk assessment is performed.
[Emphasis added]
The refusal to defer removal and to
undertake a PRRA
[4] On April 19, 2004, the Enforcement Officer refused to provide the applicant
with a Pre-removal Risk Assessment (PRRA) and declined to stay the applicant’s
removal. The Enforcement Officer advised that subsection 112(1) of the Act
precluded the applicant’s application for a PRRA because he is a person
referred to in subsection 115(1) of the Act.
[5] The applicant subsequently filed two applications for leave and for
judicial review. Under docket IMM-3377-04, the applicant sought a judicial
review of the Danger Opinion. The history of these proceedings is summarized
below. Under this docket IMM-3733-04, the applicant seeks a judicial review of
the Enforcement Officer’s decision on April 19, 2004 refusing to defer removal
and to undertake a PRRA.
Judicial Review No. 1 – the Danger
Opinion
[6] On June 13, 2005, Mr. Chief Justice Lutfy set aside the Danger
Opinion on the ground that the delegate’s reasons were inadequate because they
did not contain “a clear, distinct and separate rationale” for the
determination that he was a danger to the public: Ragupathy v. Canada
(Minister of Citizenship and Immigration), 2005 FC 834; 275 F.T.R. 311; 48
Imm. L.R. (3d) 70.
[7] On April 26, 2006, the Federal Court of Appeal allowed the appeal of
Lutfy C.J.’s judgment and restored the delegate’s Danger Opinion: Ragupathy
v. Canada
(Minister of Citizenship and Immigration), 2006 FCA
151; 350 N.R. 137; 53 Imm. L.R. (3d) 186. Mr. Justice Evans, writing for the
Court, held that paragraph 115(2)(a) of the Act requires the Minister’s
delegate to form an opinion on whether a protected person is “a danger to the
public” without having regard to the risk of persecution, or other humanitarian
or compassionate circumstances, and to provide an adequate explanation of the
bases for that opinion. The Act does not, however, also require the delegate’s
reasons to deal with whether the protected person is a “danger to the public”
before assessing risk and balancing risk and danger. The Court described at
paragraph 18 the scope of the risk assessment that must take place if the
person is considered a danger to the public:
If, on the other hand, the delegate is of the opinion that the
person is a danger to the public, the delegate must then assess whether, and to
what extent, the person would be at risk of persecution, torture or other
inhuman punishment or treatment if he was removed.
Judicial Review No. 2 – the refusal to
defer removal and to undertake a PRRA
[8] In this application for judicial review, the applicant seeks the
following relief:
1.
A declaration that the removal of the applicant
from Canada before the completion
of a risk assessment review violates section 7 of the Charter;
2.
An order prohibiting the respondent from
removing the applicant from Canada until such time as the risk assessment review has been completed;
and
3.
An order setting aside and quashing the decision
of Immigration Canada not to carry out a PRAA and defer removal, and an order
that this matter be referred back for reconsideration by a different removal
officer.
Issues
[9] The issues in this application for judicial review are as follows:
1.
Did the Enforcement Officer err in deciding that
the applicant was not eligible for a PRRA under subsection 112(1) of the Act?
2.
Is the applicant entitled to a declaration that
his removal from Canada before
the completion of an updated risk assessment review violates section 7 of the Charter?
Legislation
[10]
The legislation relevant to this application is
as follows:
1.
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to
the Canada Act 1982 (U.K.), 1982, c.
11; and
2.
Immigration and Refugee Protection Act, S.C. 2001, c. 27.
Standard of review
[11]
The first issue before the Court is a question
of law: namely, is the applicant eligible for a PRRA under subsection 112(1) of
the Act. As a pure matter of statutory interpretation, the appropriate standard
of review is correctness.
[12]
The second issue concerns the Enforcement
Officer’s decision not to defer the applicant’s removal. In Adviento v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1430, Mr. Justice Martineau
provided an extensive analysis of the standard of review applicable when
reviewing a removal officer’s decision not to defer removal. I adopt his
reasons at paragraphs 19 to 35 of the Judgment and in particular his conclusion
at paragraph 35 that the review is appropriately assessed based on the
reasonableness standard:
Therefore, in applying the pragmatic and functional test described
in [Dr. Q v. The College
of Physicians and Surgeons of British Columbia, 2003
SCC 19], I conclude that the
four factors lead to a standard of review of reasonableness simpliciter.
I appreciate that other cases
have applied a standard of patent unreasonableness since the question often
turns on fact alone.
Discussion
Preliminary issue: Style of cause
[13]
Further to a request
from the respondent, the Court orders that the style of cause be amended to include only the Minister
of Public Safety and Emergency Preparedness as a responding party pursuant to the coming into force of the Department of Public Safety and Emergency
Preparedness Act (Bill C-6) on April 4, 2005: Public Services Rearrangement and Transfer of
Duties Act, R.S.C. 1985,
c. P-34; Orders in Council, P.C. 2003-2061 & P.C. 2003-2063; Department of Public Safety and Emergency
Preparedness Act, S.C.
2005, c. 10, s. 7; Order in
Council, P.C. 2005-482.
Issue
No. 1: Did the
Enforcement Officer err in deciding that the Applicant was not eligible for a
PRRA under subsection 112(1) of the Act?
[14]
In the decision under review, the Enforcement
Officer stated in part:
With
respect to your request that Mr. Ragupathy be offered a Pre-removal Risk
Assessment, please be advised that pursuant to Section 112(1) of the
Immigration and Refugee Protection Act, Mr. Ragupathy may not apply for a
Pre-removal Risk Assessment as he is a person referred to in subsection 115(1).
[15]
Subsection 112(1) of the Act provides that
certain persons subject to a removal order may apply for protection:
|
Division 3
Pre-removal risk assessment
Protection
Application for protection
112. (1) A person in Canada, other than a
person referred to in subsection 115(1), may, in accordance with the
regulations, apply to the Minister for protection if they are subject to a
removal order that is in force or are named in a certificate described in
subsection 77(1).
|
Section 3
Examen des risques avant renvoi
Protection
Demande de protection
112. (1) La personne se trouvant au Canada et qui n’est pas visée au
paragraphe 115(1) peut, conformément aux règlements, demander la protection
au ministre si elle est visée par une mesure de renvoi ayant pris effet ou
nommée au certificat visé au paragraphe 77(1).
|
Subsection 112(2) of
the Act then provides various exceptions identifying persons not eligible to
apply for protection. None of the exceptions under subsection 112(2) are at
issue in this application.
[16]
Subsections 115(1) and (2) of the Act provide
that a protected person or Convention refugee must not be removed or “refouled”
to a country where they would be at risk of persecution, torture or cruel and
unusual treatment or punishment unless they fall into one of the identified
exceptional categories:
|
Principle of Non-refoulement
Protection
115. (1) A protected person or a person who
is recognized as a Convention refugee by another country to which the person
may be returned shall not be removed from Canada to a country where they
would be at risk of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion or at risk of
torture or cruel and unusual treatment or punishment.
Exceptions
(2) Subsection
(1) does not apply in the case of a person
(a) who is inadmissible on grounds of
serious criminality and who constitutes, in the opinion of the Minister, a
danger to the public in Canada; or
(b) who is inadmissible on grounds of
security, violating human or international rights or organized criminality
if, in the opinion of the Minister, the person should not be allowed to
remain in Canada on the basis of the nature and severity of acts committed or
of danger to the security of Canada.
|
Principe du non-refoulement
Principe
115. (1) Ne peut être renvoyée dans un pays où elle risque la
persécution du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques, la torture ou
des traitements ou peines cruels et inusités, la personne protégée ou la
personne dont il est statué que la qualité de réfugié lui a été reconnue par
un autre pays vers lequel elle peut être renvoyée.
Exclusion
(2) Le paragraphe (1) ne s’applique pas à l’interdit de territoire
:
a)
pour grande criminalité qui, selon le ministre, constitue un danger pour le
public au Canada;
b)
pour raison de sécurité ou pour atteinte aux droits humains ou internationaux
ou criminalité organisée si, selon le ministre, il ne devrait pas être présent
au Canada en raison soit de la nature et de la gravité de ses actes passés,
soit du danger qu’il constitue pour la sécurité du Canada.
|
[17]
There is no dispute that the applicant is inadmissible
on grounds of serious criminality. It is also clear that, in the Minister’s
opinion, the applicant constitutes a danger to the public in Canada. Subsection
115(2) therefore applies to the applicant, and, accordingly, the
non-refoulement provision in subsection 115(1) is prima facie inapplicable
to the applicant.
[18]
The applicant argues that the eligibility for a PRRA set out in
subsection 112(1) applies to him because he is not “a person
referred to in subsection 115(1)” by virtue of being excluded under subsection
115(2) because he is inadmissible and subject to a Danger Opinion. I do not
agree. If Parliament intended the exceptions in subsection 115(2) to have any
impact on the application of subsection 112(1), the latter provision would
describe a “person referred to in section 115” rather than specifically limit
its application to persons not referred to in subsection 115(1).
[19]
The respondent argues that the applicant is “a person referred to in
subsection 115(1)” by virtue of being a Convention refugee and protected person.
Notwithstanding the applicant’s inadmissibility on the grounds of serious
criminality, I agree with the respondent’s submission that the applicant
remains a Convention refugee and protected person since he has not lost this
status through cessation or vacation proceedings before the Refugee Protection
Division.
[20]
Subsection 112(1), properly interpreted in light
of its reference to subsection 115(1), provides that a person in Canada, other
than a protected person or a person who is recognized as a Convention refugee
by another country to which the person may be returned, may, in accordance
with the regulations, apply to the Minister for protection if they are subject
to a removal order that is in force or are named in a certificate described in
subsection 77(1).
[21]
Based on this interpretation, the applicant is
not eligible to apply to the Minister for protection under subsection 112(1). I
therefore conclude that the Enforcement Officer did not err in concluding that
the applicant was not eligible to apply for a PRRA under subsection 112(1).
[22]
Madam Justice Carolyn Layden-Stevenson came to
the same conclusion in Fabian v. Canada, (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1331 at paragraphs 6, 7 and 8. She held that a
person disqualified from subsection 115(1), like the applicant in the case at
bar, is still excluded from the right to a PRRA under subsection 112(1) of the
Act. I agree with Justice Layden-Stevenson characterization of the applicant’s
argument in this case, which was the same argument before her:
While
the applicant’s submission is creative, it does not, in my view, raise a
serious issue.
Issue
No. 2: Is the
Applicant entitled to a declaration that his removal from Canada before the completion of an updated risk
assessment review violates section 7 of the Charter?
[23]
It does not follow from the applicant’s
ineligibility to apply for protection under subsection 112(1) that he is not
entitled to a risk assessment before removal. Indeed, the Minister is required
to conduct a risk assessment within the Danger Opinion prepared under paragraph
115(2)(a). At issue is whether it is necessary to conduct an updated risk
assessment before removing the applicant from Canada. The question is whether the effluxion of time since the issuance
of the Danger Opinion necessitates an updated risk assessment.
[24]
The need for of a risk assessment in the context
of a Danger Opinion flows from the requirements of section 7 of the Charter,
which guarantees that “Everyone has the right to life, liberty and security of
the person and the right not to be deprived thereof except in accordance with
the principles of fundamental justice.” In Suresh v. Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 3, the Supreme Court of
Canada held in part that section 53 of the former Immigration Act,
R.S.C. 1985, c. I-2, which provided for the removal of Convention refugees who
were inadmissible and found to constitute a danger to the public or security of
Canada, required the Minister to assess the risk of torture upon removal and
consider this risk in relation to other societal interests in order to pass
constitutional muster. Subsection 115(2) of the Act is similar to section 53
of the former Immigration Act. It follows that the Minister’s
constitutional obligations arising out of section 53 of the former Act apply
with equal force to subsection 115(2) of the current Act.
[25]
I am also guided by Mr. Justice MacKay’s recent
judgment in Re Jaballah, 2006 FC 1230, where at paragraph 84 he held
that deportation where and so long as there is a substantial risk that an
individual would be tortured or worse would violate his rights as a human
being, guaranteed by section 7 of the Charter. Mr. Justice MacKay held
that the Minister, in reliance on a security certificate, now found to be
reasonable, as a removal order, may not exercise discretion to remove Mr.
Jaballah to any country where and when there is a substantial risk that he
would face torture or death or cruel and unusual punishment. As in Re
Jaballah, I find there is nothing exceptional about the Applicant’s case
that would justify deportation despite a substantial risk of torture or similar
mistreatment. The extent of that risk, in my view, must be scrutinized to
ensure compliance with section 7 of the Charter.
[26]
In my view, the Danger Opinion dated March 26,
2004 prepared by the Minister’s delegate, which has withstood judicial review,
satisfied the requirements of fundamental justice under section 7 of the Charter
in respect of the Minister’s decision, at the time it was made, to
remove the applicant on April 27, 2004. The Danger Opinion carefully considers
the applicant’s risk of persecution. However, it is obvious that the Minister’s
assessment of risk was limited to the circumstances present in Sri Lanka at the time the Danger Opinion
was prepared. On April 16, 2004, 20 days later, the applicant presented
evidence that the circumstances in Sri Lanka materially deteriorated, and that his risk of persecution or
torture had accordingly been enhanced, in the period between the issuance of
the Danger Opinion and the applicant’s scheduled removal.
[27]
A timely risk assessment is Canada’s safeguard against deportation to
torture or similar treatment. Indeed, the performance of a risk assessment
before removal is the mechanism by which effect is given to section 7 of the Charter
and various international human rights instruments to which Canada is a party. An individual’s rights
under section 7 of the Charter would be rendered illusory, however, if the
facts underlying the risk assessment did not correspond to the present reality in
the country to which the individual is being deported.
[28]
The country conditions in Sri Lanka in March 2004 do not necessarily
correspond to the applicant’s risk of persecution or torture upon removal three
weeks later, or those now present over two years later. As is often the case in
refugee producing countries, circumstances can change significantly over a
short period of time. The Sri Lankan election of April 2004 and the
deterioration of the previous peace accord are examples of events having
potentially significant impact on the applicant’s risk of persecution or
torture. To remove the applicant on the basis of a risk assessment conducted
before such events took place could be to turn a blind eye to the reality awaiting
the applicant and, potentially, Canada’s international obligations concerning refoulement.
[29]
In the Danger Opinion, the Minister’s delegate
notes that the reality in Sri Lanka at the time of writing did not correspond with that faced by the applicant
when he fled as a refugee in 1998. It was on the basis of the conditions
present in 2004 that the Minister’s delegate weighed the applicant’s risk of
persecution as minimal and balanced it against the danger he posed to the
public in Canada. Clearly, the
effluxion of time can be a double-edged sword. The circumstances warranting
protection in 1998 may be nullified in March 2004 only to be resurrected weeks
later. The only relevant circumstances, however, are those present at the time
of removal.
[30]
In Said v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1632; 260 N.R. 384; 9 Imm. L.R. (3d) 1, the
Federal Court of Appeal considered whether the Minister was required to provide
a periodic, new risk assessment before deporting a Convention refugee found to
be criminally inadmissible and a danger to the public. In that case, the appellant
had spent two years in immigration detention after his release from jail
because he refused to apply for Afghan travel documentation. Mr. Justice
McDonald, writing for the Court, held at paragraph 9 that no new risk
assessment was required in the circumstances:
[…]
I agree with the reviewing Judge that in the circumstances of this case, where
the appellant has delayed his removal by his own failure to co-operate, there
is no requirement that the Minister provide a periodic, new risk assessment.
The Court of Appeal noted at paragraph 10 that
the appellant did not allege any material change in circumstances affected his
risk upon removal:
In
addition, the appellant has not submitted any new evidence with respect
to the change of circumstances which allegedly occurred in 1996. Nor has he
established how this change would affect him personally. It is true that,
in 1998, he wrote to the Minister seeking a deferral of the removal order until
an adequate risk assessment was made. However, in that correspondence, he
made no assertion of a change in country conditions nor did he provide any new
evidence which would require a new risk assessment or which would show that
the one done was not adequate. In these circumstances, no further assessments
were warranted.
[Emphasis added]
[31]
In my view, the Court of Appeal’s ratio
in Said, supra, does not apply to the markedly distinguishable
facts in this case. Unlike the appellant in Said, the applicant has not
unduly delayed the removal process by failing to cooperate. Instead, the
suspension of his removal order arose by the granting by this Court of a stay pending
the determination of both applications for judicial review. Moreover, the applicant
has submitted considerable evidence with respect to the change of circumstances
he alleges occurred since March, 2004. As he was tortured in Sri Lanka before seeking refuge in Canada, it is plainly obvious that a
deterioration in country conditions, including a shift in the balance of power
favouring his previous aggressors, could have a significant impact on the risk
faced by him personally upon return.
[32]
With respect to the applicant’s contention that
the Enforcement Officer erred in refusing to defer removal pending a
re-assessment, I note that the decision in question was made on April 19, 2004.
At that time, the Enforcement Officer only had available to her the evidence
provided by the applicant purporting to demonstrate a material change in
circumstances in Sri Lanka
since the date of the Danger Opinion. The Enforcement Officer appears to have
construed the applicant’s letter as a request for a reconsideration of the
Danger Opinion and accordingly forwarded the materials provided by the applicant
to the Minister’s delegate. The Enforcement Officer advised that “[t]his,
however, does not stay the removal of Mr. Ragupathy.”
[33]
The Enforcement Officer states at paragraphs 6-9
in her Affidavit that she saw no real reason to justify non-compliance with her
duty to execute the removal order:
¶6 I
considered all of the material submitted by the Applicant and found that he
raised no real reason to justify non-compliance with my statutory duty
under s. 48 of the Immigration and Refugee Protection Act [IRPA] to carry out
removal orders as soon as reasonably practicable.
¶7 With
respect to the Applicant’s request regarding risk assessment and any risk he
might face on return to Sri Lanka, I noted that Mr. Ragupathy was not eligible
for a PRRA under s.112(1) of IRPA as he is a Convention Refugee, i.e., a person
referred to in s. 115(1) of IRPA.
¶8 I
also considered that Mr. Ragupathy had received a Danger Opinion on March 26,
2004 and that a risk assessment relating to current country conditions had
been included by the Minister’s Delegate in his reasons for this Opinion. As
I am not trained in the making of complex determinations of risk for persons
subject to Danger Opinion proceedings under IRPA, I decided to forward the
materials the Applicant submitted to the Minister’s Delegate at National
Headquarters for reconsideration – consistent with [the Applicant’s
counsel’s] request.
¶9 That
being said, I did review all the materials the Applicant submitted, and saw
no specific reason to defer removal.
[Emphasis added]
[34]
In Suresh, above, the Supreme Court of
Canada held at paragraph 127 that the applicant must establish a threshold
showing that a risk of torture or similar abuse exists before the Minister must
conduct a risk assessment prior to removal. The Supreme Court said that the
individual must make out a prima facie case that there may be a risk of
torture upon deportation. If the refugee establishes that torture is a real
possibility, the Minister must provide the refugee with all the relevant
information and advice she intends to rely on and provide the refugee with an
opportunity to address that evidence in writing. This is the minimum required
to meet the duty of fairness and fulfill the requirements of fundamental
justice under section 7 of the Charter. The Supreme Court held at paragraph
127:
…
It for the refugee to establish a threshold showing that a risk of torture or
similar abuse exists before the Minister is obliged to consider fully the
possibility. This showing need not be proof of the risk of torture to that
person, but the individual must make out a prima facie case that there
may be a risk of torture upon deportation.
[35]
The respondent argues that the Enforcement’s
Officer’s discretion to defer removal is a narrow one that could not be
reasonably exercised in the applicant’s situation. The respondent relies on Jamal
v. Canada
(Minister of Citizenship and Immigration), 2001 FCT
494 at paragraph 7, in which Mr. Justice Dubé states:
[…]
This Court has on numerous occasions emphasised that persons who failed to
allege a risk at earlier appropriate junctures cannot expect the removal
officer to set aside his travelling arrangements so as to conduct a quick risk
assessment before executing the duty imposed upon him by the Act. In my
view, a removal officer may only entertain such an application where the
alleged risk is obvious, very serious and could not have been raised earlier.
Such is not the case here.
[Emphasis added]
[36]
I have reviewed the applicant’s request for
deferral of removal based on new evidence about the snap election in Sri Lanka and the open conflict among two
factions of the Liberation Tigers of Tamil Eelam, which until the election had
been united in their struggle for minority rights and a separate homeland. The
applicant presented several documents including a Globe and Mail article
dated April 16, 2004 entitled “Peace prospects bleak in Sri Lanka. Snap election feuding
among Tamils imperil Canada’s efforts for democracy.” The article
said that the election “precipitated a crisis” and that the two factions of
Tamils have been fighting ever since with dozens of people reported killed over
one weekend. This evidence demonstrated a breakdown of the peace accord. This
peace accord formed the basis of the Minister’s assessment that the applicant
was safe to return to Sri Lanka.
[37]
In my view, the conditions precedent to
entertaining an application to defer removal described by Justice Dubé are
clearly satisfied in this case. The risk alleged by the applicant was both
obvious and very serious. Moreover, it would have been impossible to raise the
risk earlier given that the events giving rise to the alleged risk occurred in
the short period between the issuance of the Danger Opinion and the applicant’s
request for deferral pending reassessment. I must therefore reject the respondent’s
contention that the Enforcement Officer did not have discretion to defer the applicant’s
removal. It is obvious that the change in circumstances relied upon by the
Minister in the Danger Opinion no longer existed. The basis for the no risk
assessment had materially changed.
[38]
Having found that the Enforcement Officer had discretion
to defer the applicant’s removal, I must also conclude that the Enforcement
Officer’s decision not to exercise her discretion to do so was unreasonable.
The Enforcement Officer states in her Affidavit that the reason for not
deferring removal was because there was no specific reason to do so. The
Enforcement Officer also states that she relied on the risk assessment provided
by the Minister’s delegate in the Danger Opinion. Both statements indicate that
the Enforcement Officer was not alert and alive to the possibility that the
alleged change in country conditions gave rise to an enhanced risk of torture
or persecution upon the applicant’s return to Sri Lanka. Indeed, by relying on the existing risk assessment pre-dating the
events identified by the applicant in his request for deferral, the Enforcement
Officer failed to acknowledge the basis for the applicant’s concern.
[39]
In concluding that the applicant is entitled to
an updated risk assessment before removal, I am mindful of the respondent’s
concern that such a finding could result in an endless process of risk
assessments. Such a result would likely offend the principles of fundamental
justice. The concern about finality was also acknowledged by Madam Justice McGillis
in Sinappu v. Canada (Minister of Citizenship and Immigration), [1997]
2 F.C. 791; 126 F.T.R. 29; 42 C.R.R. (2d) 143 (F.C.); aff’d in Sinappu v. Canada (Minister of Citizenship and
Immigration), [1999] F.C.J. No. 2023; 253 N.R. 234
(F.C.A., dismissing appeal on grounds of mootness). At paragraph 71, Justice McGillis
stated:
[…] The Minister always has a discretion concerning the timing of
the removal of an individual. In an appropriate circumstance involving a
demonstrably significant change of circumstances in a country, the Minister may
choose to delay removal pending an examination of risk alleged in a further
application for humanitarian or compassionate relief. However, it must be
recognized that, at some point in the system, there has to be finality. […]
[Emphasis added]
Recognizing that the applicant’s right under
section 7 of the Charter to a risk assessment before removal requires
that the risk assessment occur proximate in time to the removal is not, in my
view, incompatible with the need for finality in the system. Whatever the
period of delay between the issuance of a danger opinion and the scheduled
removal, the onus is on the applicant to demonstrate that there has been a
material change in circumstances warranting a re-assessment of his risk upon
removal. If an enforcement officer declines to exercise the discretion to defer
the removal of a deportee pending re-assessment, a judicial stay of the removal
order will only be granted where the deportee can satisfy the well-established
tri-partite test. The requirements of a serious issue, irreparable harm and the
balance of convenience are, in my view, appropriate safeguards to ensure that
vexatious attempts to forestall removal are dealt with accordingly.
[40]
In any event, the applicant is entitled to an
updated risk assessment in light of the considerable passage of time since the
issuance of the Danger Opinion and this Court hearing. Accordingly, the
Minister must update the risk assessment contained in the Danger Opinion. If the
Minister decides that the applicant would not be subject to a risk of torture,
risk to his life or of cruel and unusual punishment or persecution, then the
applicant can be removed without delay. Only a stay of the execution of the
removal order from this Court would prevent the applicant from being removed as
soon as reasonably practicable. Such a stay would require that the applicant
establish irreparable harm, which is clear, non-speculative evidence that he
would suffer personal injury if removed to Sri Lanka. A motion for a stay can be heard by this Court on two days notice
and disposed of immediately.
Conclusion
[41]
For the foregoing reasons, this application for
judicial review is allowed in part. The Enforcement Officer was correct in
determining that the applicant is not eligible for a PRRA under subsection
112(1) of the Act. However, the Enforcement Officer erred in declining to
suspend the applicant’s removal pending a re-assessment of the risk faced by
him on removal to Sri Lanka in
light of the significant change of circumstances alleged by the applicant. The applicant
must not be removed from Canada
until the Minister’s delegate has re-assessed the applicant’s risk of persecution, torture or other inhuman punishment or treatment if he
was removed.
Certified
question
[42]
The applicant proposed two certified questions:
1.
Is a person excluded from subsection 115(1) of
the Act because that person is inadmissible on the grounds of serious
criminality and constitutes a danger to the public, entitled to a PRRA under
subsection 112(1) of the Act?
2.
In light of evidence that there has been a
change in country conditions, is a removal officer under a duty to assess
whether an applicant has established a “prima facie” risk, and to defer
removal pending an updated risk assessment to take account of the change of
country conditions?
[43]
The respondent opposes the certification of the
first question because the law is clear. A protected person under subsection
115(1) of the Act cannot make an application for a PRRA under subsection 112(1)
of the Act. I agree that the law is clear. Madam Justice Carolyn
Layden-Stevenson agreed in Fabian, above, and Madam Justice Eleanor
Dawson agreed in Harkat, [2003] 4 FC 1020 at paragraph 25. I also agree
that the statutory language is clear.
[44]
The respondent opposes the certification of the
second question because it turns on the facts. I agree that this question is
not a question warranting certification. The answer is obvious. If the evidence
establishes a change in country conditions such that an applicant faces a new
risk of persecution, torture or other inhuman punishment or
treatment, the removal officer is obliged to defer removal pending an
updated risk assessment. This obligation is under section 7 of the Charter, and
for persons entitled to a PRRA, under section 112 of the Act.
[45]
Accordingly, the Court does not consider either question
should be certified.
JUDGMENT
THIS COURT
ORDERS AN ADJUGES that:
1. The style of cause is amended to name the Minister of Public Safety and
Emergency Preparedness as the respondent;
2. The
application for judicial review of the Enforcement Officer’s decision that the
applicant is not eligible for a PRRA under subsection
112(1) of the Act is
dismissed;
3. The
application for judicial review of the Enforcement Officer’s decision not to
suspend the applicant’s removal from Canada is allowed; and
4.
The
applicant must not be removed from Canada unless and until the Minister’s
delegate has
re-assessed the applicant’s risk of persecution,
torture or other
inhuman punishment or treatment.
“Michael A. Kelen”
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