Docket: IMM-4493-11
Citation: 2012 FC 74
Toronto, Ontario, January 18, 2012
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
|
|
GOWRI VASANTHAKUMAR
SHAKTHIPRIYA VASANTHAKUMAR
SHIESWARAN VASANTHAKUMAR
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Gowri
Vasanthakumar and her children seek judicial review of the decision of a Pre-removal Risk Assessment [PRRA] officer
who found that the family would not be at risk if they were forced to return to
Sri Lanka. As will be explained below, I am not
persuaded that the family was treated unfairly in the PRRA process. As a
result, their application for judicial review will be dismissed.
Background
[2]
At the time the
applicants filed their PRRA application on August 28, 2008, their application for
permanent residence had been approved in principle.
[3]
In
apparent anticipation that they would receive permanent residence in Canada, the applicants’ PRRA application
was brief. At several places in the application the applicants made reference
to further submissions that were to follow. However, no such submissions were
ever provided by the applicants.
[4]
On July
28, 2010, the family’s application for permanent residence was refused. Ten
months later, the PRRA
officer rendered
the negative decision in relation to their PRRA application.
[5]
The applicants submit
that, in the circumstances, fairness required the PRRA officer to notify them
that their PRRA application was being “reactivated” and afford them a
reasonable opportunity to file supplementary submissions in support of their
application.
Analysis
[6]
Where the issue for
the reviewing court is one of procedural fairness arises, the Court is required
to determine whether the process followed by the decision-maker satisfied the
level of fairness required in all of the circumstances: see Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
para. 43.
[7]
It is well established
that the burden is on PRRA applicants to put all of the information that they
wish to have considered in connection with their application before the PRRA
officer: Cirahan v. Canada 2004 FC 1603, 135 A.C.W.S. (3d) 457 at para.
13; Zununaj v. Canada (Minister of Citizenship and
Immigration), 2005 FC
1715, 144 A.C.W.S. (3d) 927; Lupsa v. Canada
(Minister of Citizenship and Immigration), 2007 FC 311, 159 A.C.W.S. (3d) 419.
[8]
This
responsibility extends to ensuring that PRRA submissions are updated as
necessary: Jane Doe v. Canada (Minister of Citizenship and Immigration), 2010 FC 285, [2010] F.C.J.
No. 323 (QL) at para. 19.
[9]
An exception to this
principle arises where there have been significant changes in the conditions
within a country, and an officer intends to rely on documents
from public sources which only became available after the filing of an
applicant’s PRRA application. Where these documents are “novel and
significant”, fairness may require the officer to disclose the documents to an
applicant and to provide the applicant with an opportunity to respond: Mancia
v. Canada (Minister of Citizenship and
Immigration), [1998] 3
F.C. 461, 161 D.L.R. (4th) 488 (F.C.A.), at para. 27(b).
[10]
The applicants say
that this is just such a case, given the substantial changes that have occurred
within Sri Lanka as a result of the end of the civil war
in that country. In support of this contention, the applicants cite several
cases where the Mancia exception has been found to apply, including Pathmanathan v. Canada (Minister of Citizenship and
Immigration),
2009 FC 885, [2010] 3 F.C.R. 395 at para. 34, Mahendran v. Canada (Minister of Citizenship and
Immigration),
2009 FC 1236, 86 Imm. L.R. (3d) 30, and Gunaratnam v. Canada (Minister of Citizenship and
Immigration),
2011 FC 122, 96 Imm. L.R. (3d) 306 at para. 26.
[11]
In my view, the jurisprudence
relied upon by the applicants is distinguishable from the present case. The
civil war in Sri Lanka ended in May of 2009. The PRRA decisions
in the cases cited by the applicants were rendered shortly after the war ended.
In contrast, by the time that the PRRA decision was rendered in this case in
May of 2011, documentary evidence with respect to the changes in conditions in Sri Lanka could no longer be properly characterized as “novel”.
[12]
There is also nothing
in the record before me to suggest that the applicants could have had any
legitimate expectation that they would be provided with a further opportunity
to provide additional submissions in support of their PRRA application prior to
a decision being rendered in that regard.
[13]
The applicants argue
that they were not “removal ready” at the time that they applied for their
PRRA, submitting that their removal was stayed as a result of the approval in
principle of their application for permanent residence. In support of this
contention they rely on section 233 of the Immigration and Refugee
Protection Regulations, SOR/2002-227. According to the applicants,
the refusal of their application for permanent
residence thus
triggered a duty on the PRRA Officer to notify them that their PRRA application
was being “reopened” or
“reactivated”.
[14]
However, it is clear
that the applicants’ reliance on section 233 of the Regulations is misplaced,
as that provision only operates only to stay a removal where there has been an
approval in principle of an application for a Humanitarian and Compassionate
exemption.
[15]
Finally, even if the
applicants believed that their PRRA application was being put on hold pending a
final decision in relation to their application for permanent residence, that
application was refused in July of 2010. The applicants made no effort to
update their PRRA application during the ensuing 10 months.
[16]
In these
circumstances, I am not persuaded that the applicants were treated unfairly in
the PRRA process. As a consequence, the application for judicial review is
dismissed.
Certification
[17]
Neither party has
suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This application
for judicial review is dismissed; and
2. No serious
question of general importance is certified.
“Anne
Mactavish”
Email this Content