Date: 20101117
Docket: IMM-2140-10
Citation: 2010 FC 1155
Toronto, Ontario, November 17, 2010
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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VUSUMUZI NGUBENI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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AND BETWEEN:
Docket: IMM-2228-10
Citation: 2010 FC 1156
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VUSUMUZI NGUBENI
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The Applicant is
an adult male citizen of Swaziland. He claimed refugee
protection in Canada which claim
was rejected by a final decision of the Refugee Protection Board. The
Applicant applied for a Pre-Removal Risk Assessment (PRRA). By a decision dated
January 11, 2010 a PRRA Officer rejected that application. That rejection is
the subject of the first of these two applications for judicial review
(IMM-2140-10). The Applicant received a notice to report for removal from Canada. He applied
for a deferral of that removal and was refused by a decision of a removals
officer dated 22 April 2010. This refusal is the subject of the second of the
two Applications now before the Court (IMM-2228-10). This Court gave an Order
staying the removal of the Applicant from Canada until final
disposition of these Applications.
[2]
Both
Applications for judicial review, the one dealing with the rejection by the
PRRA Officer, the other dealing with the refusal to defer by the removals
officer came before me and were heard at the same time.
[3]
I
will deal first with the rejection of the PRRA application. Three grounds
submitted by the Applicant were considered by the PRRA Officer. The first was
the Applicant’s own narrative as to his fears should he be returned to Swaziland. The PRRA
Officer considered this narrative and found that it was materially the same as
that considered by the RPD thus would not lead to any different result. The
second was the Applicant’s submission that he had received a telephone call
from an unidentified cousin indicating that the police in Swaziland were looking
for him and may cause harm including death. The PRRA Officer determined that
no weight should be given to this assertion given the lack of specifics and the
interest that such a cousin may have in the outcome of the application. The
third submission rested on an Amnesty International updated country condition
report which the Officer found did not demonstrate any material changes to the
conditions considered by the RPD. I have reviewed the evidence and entirely
agree with the findings and conclusions of the PRRA Officer, they were
reasonable and correct. On this basis there is no reason to set aside the
conclusion to reject the PRRA decision.
[4]
Turning
to the refusal of the removals officer to defer removal the records shows that,
at the time that deferral was requested the Applicant had, a few days earlier,
filed an application for leave for judicial review of the PRRA Officer’s
decision and, the record shows, the removals officer was aware of that
application. The reasons given by the removals officer not to defer removal,
however, make no reference to the fact that an application for judicial review
of the PRRA decision had been filed. This, argues Applicant’s Counsel,
constitutes a reviewable error.
[5]
Applicant’s
Counsel places great reliance on the decision of Harrington J. of this Court in
Shpati v. Canada (Minister of Public Safety and Emergency
Preparedness), 2010 FC 1046. That decision however was issued several
months after the decision of the Removals Officer at issue here. I was
informed by Respondent’s Counsel at the hearing of the present Applications
that, given that questions were certified by the Court in Shpati, the
Minister will be appealing that decision.
[6]
I
am not satisfied that Shpati can be read so broadly as to state that,
whenever a failed PRRA applicant files an application for judicial review, a
removals officer must defer removal at least until final disposition of that
application. The Federal Court of Appeal may provide further assistance in
this regard.
[7]
In
any event the present circumstances can be distinguished from Shpati.
Here I am dealing at the same time with the application for judicial review of
the PRRA decision, which I will dismiss and the application for judicial review
of the deferral of the removal decision which I will dismiss as being moot as a
result of my decision in respect of the PRRA matter.
[8]
Given
that Shpati will be before the Court of Appeal, there is no point in
certifying a question in the present Application. Counsel for both parties
have so agreed.
JUIDGMENT
For the reasons provided:
THIS COURT’S
JUDGMENT is that:
1. Each of
Applications IMM-2140-10 and IMM-2228-10 is dismissed;
2. No question
is to be certified;
3. No Order as
to costs.
“Roger
T. Hughes”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2140-10
STYLE
OF CAUSE: VUSUMUZI NGUBENI v. THE
MINISTER OF CITIZENSHIP AND
IMMIGRATION
DOCKET: IMM-2228-10
STYLE
OF CAUSE: VUSUMUZI NGUBENI v. THE
MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER
17, 2010
REASONS FOR JUDGMENT
AND JUDGMENT BY: HUGHES J.
DATED: NOVEMBER
17, 2010
APPEARANCES:
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Philip Varickanickal
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FOR THE APPLICANT
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Eleanor Elstub
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Gertler, Etienne LLP
Barristers & Solicitors
Toronto, Ontario
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FOR THE APPLICANT
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Myles J. Kirvan
Deputy Attorney General of Canada
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FOR THE RESPONDENT
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