Docket:
IMM-6725-11
Citation:
2012 FC 354
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, March 23, 2012
PRESENT:
The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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WATSON SAINT-FÉLIX
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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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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), of a decision of a
Pre-Removal Risk Assessment (PRRA) officer, informing the applicant that the
initial decision relating to him was not final, for lack of jurisdiction, and
that a final decision would need to be made by the Minister’s Delegate.
FACTS
[2]
The
applicant, a Haitian citizen, came to Canada in 1997 at the age of seven as a permanent
resident. In October 2008, he was sentenced to a term of three and a half
years’ imprisonment for robbery, conspiracy and forcible confinement. He then
lost his permanent resident status on grounds of serious criminality and a
removal order was issued against him. As a result, he was detained at the Rivière-des-Prairies
Detention Centre in Montréal.
[3]
In
July 2011, the applicant submitted a PRRA application. On August 11, 2011, the PRRA
officer delivered a positive decision, determining that he was a person at risk
within the meaning of section 97 of the IRPA. The officer stayed the removal
order issued against the applicant, but indicated in his letter that he did not
have protected person status and that his case could be reassessed should new
circumstances arise. Following that decision, the applicant was released from
custody.
[4]
One
week later, on September 14, 2011, the same PRRA officer notified the applicant
that the first decision contained errors because he lacked jurisdiction at the
time he rendered that decision, hence the present application for judicial
review.
ANALYSIS
[5]
Was
the PRRA officer functus officio at the time the decision was delivered
on August 11, 2011?
[6]
On
the one hand, the applicant argues that a PRRA officer is functus officio
once his or her decision has been delivered and disclosed to the person concerned.
Consequently, he no longer had jurisdiction to deliver the second decision,
dated September 14, 2011. The applicant bases this argument on Monongo v Canada (Minister of Citizenship and Immigration), 2009 FC 491, [2009] FCJ 596 and Chudal v Canada (Minister of Citizenship and Immigration), 2005 FC 1073, [2005] FCJ 1327.
[7]
On
the other hand, the respondent contends that it matters little whether the PRRA
officer had jurisdiction to deliver a second decision in accordance with the
applicable law, he does not have the authority to grant a stay of the removal
order or even to grant Canada’s protection. Consequently, the decision
delivered on August 11, 2011, is not res judicata and the assessment of
the PRRA application may proceed according to the procedure set out in the IRPA
and in the Immigration and Refugee Protection Regulations (IRPR). A
judgment by this Court setting aside the decision dated September 14, 2011,
would therefore be of no practical effect. The letter dated September 14, 2011,
is nothing more than an administrative act which is not subject to judicial
review; it is simply a courtesy letter to rectify the administrative act and to
modify the assessment in accordance with the powers conferred upon the officer
under the IRPA. I concur with this view.
[8]
In
this case, it is clear that the officer could not grant a stay to the applicant
because he did not have jurisdiction to do so.
[9]
Thus,
the Act provides that in cases where a foreign national is determined to be
inadmissible on grounds of serious criminality, a PRRA officer must first assess
the risks to which the applicant would be exposed upon their return (paragraph
172(2)(a) of the IRPR). If a risk is identified, an analyst from the
Danger to the Public/Rehabilitation Unit, under the authority of Citizenship
and Immigration Canada (CIC), must then assess whether the applicant’s
presence in Canada constitutes a danger to the public or to the security of
Canada, or whether the nature and severity of the acts committed by the
applicant warrant the rejection of the PRRA application (paragraph 172(2)(b)).
Lastly, the Minister’s Delegate, also under the authority of CIC, takes the
assessments into consideration, along with the supporting documentation and
observations submitted by the applicant, before determining whether the
applicant is entitled to a stay of the removal order (paragraph 113(d)
of the IRPA and subsection 172(1) of the IRPR). A positive decision with regard
to the applicant can only have the effect of granting a stay, which is
reviewable by the Minister at any time, according to the written procedure
(section 114 of the IRPA and section 173 of the IRPR).
[10]
This
means that the PRRA officer did not have the delegated authority to deliver a
decision granting Mr. Saint-Félix a stay, as his role was limited to rendering
an assessment which could be later considered by the delegate. The Minister
could not be bound by the stay that had been granted (Canada (Minister
of National Revenue) v Inland Industries Limited, [1974] S.C.R. 514, 23
DLR (3d) 677).
[11]
The
letter dated August 11, 2011, containing the PRRA officer’s assessment is simply
one administrative act among others which where used to deliver the final
decision. The same applies to the letter dated September 14, 2011, which simply
corrected the previous letter to render it compliant with the applicable law.
However, the decision of the Minister’s Delegate does carry legal consequences
and will be subject to judicial review.
[12]
The
present application for judicial review is premature and will be dismissed. No
questions were proposed for certification and none will be certified.
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