Docket: IMM-6584-10
Citation: 2011 FC 1312
Ottawa, Ontario, November 16, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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PATHMALOGENI JAYASUNDARARAJAH
ABISHNA JAYASUNDARARAJAH (by her
guardian Pathmalogeni Jayasundararajah) and SUVIGSHAN JAYASUNDARARAJAH (by
his guardian Pathmalogeni Jayasundararajah)
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Applicants
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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]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a
decision of an Enforcement Officer of the Canada Border Services Agency (Officer),
dated November 10, 2010 (Decision), which denied the Applicants’ request for a
deferral of their removal until their H&C (H&C) and PRRA applications
were processed.
BACKGROUND
[2]
Pathmalogeni
Jayasundararajah is the Principal Applicant in this application. The Secondary
Applicants are her daughter, Abishna Jayasundararajah, and her son, Suvigshan Jayasundararajah.
All are Tamils and citizens of Sri Lanka.
[3]
In
September 2004, the Applicants arrived to Canada together
with Jayasundararajah Murugan, the Principal Applicant’s husband and the
children’s father (Murugan). On arrival, they were granted temporary resident
status. Since their arrival, the family has collectively filed several
applications to remain in Canada.
[4]
On
4 November 2004 the Applicants and Murugan filed a claim for refugee protection.
This claim was denied on 16 August 2005 on the grounds of credibility. On 12
September 2005 the family filed an application for leave and judicial review of
the negative refugee decision, which was denied on 1 December 2005. The family then
applied for permanent residence on H&C grounds on 1 February 2006. They were
notified of their right to request a Pre-Removal Risk Assessment (PRRA) on 18
December 2006. They applied for a PRRA on 28 December 2006 and were refused on
22 December 2009. They were notified of the negative PRRA decision on 1 March
2010. On 9 March 2010, the family applied for leave and judicial review of the
negative PRRA decision. This application was denied on 10 June 2010.
[5]
On
4 May 2009, Murugan was charged with assaulting the Principal Applicant
contrary to section 266 of the Criminal Code of Canada. Between 21 July
2009 and 31 November 2009, Murugan completed a Partner Abuse Response Program
and was issued a certificate of completion on 13 November 2009. On 1 December
2009, he was ordered by the Ontario Court of Justice to refrain from contacting
the Principal Applicant without her express written and revocable consent for a
period of twelve months. On 8 October 2010, the CBSA interviewed Murugan and
discovered that the couple had separated. Murugan submitted a separate deferral
request, but this was refused on 1 November 2010. He was removed from Canada on 7 November
2010.
[6]
After
leave for judicial review of their application for permanent residence on H&C
grounds was denied, the Applicants, independently of Murugan, filed new applications
for permanent residence on H&C grounds on 9 July 2010. Their applications included
submissions on new risks that they alleged had not previously been assessed.
These new risks included new grounds of personalized risk, new information
regarding Murugan’s family in Sri Lanka, and risks from the authorities
in Sri
Lanka
based on suspicions that the Principal Applicant was a Liberation Tigers of Tamil
Eelam (LTTE) sympathizer.
[7]
On
12 October 2010, the Applicants were served with a Direction to Report for
Removal from Canada, with removal
scheduled for 15 November 2010. The Applicants filed another request for a PRRA
on 25 October 2010.
[8]
On
1 November 2010, the Applicants made a formal request to the Greater Toronto
Enforcement Centre (GTEC) for a deferral of their removal until their
applications for permanent residence on H&C grounds and their new PRRAs
were assessed by qualified officers. They also requested that a decision be
made by noon on 3 November 2010. In their request, they said that they would
assume a negative decision if this deadline was not met.
[9]
On
9 November 2010 the Applicants brought a motion for a stay of their removal.
The following day, the Applicants filed an application for leave and judicial
review of the Officer’s anticipated refusal to defer their removal. On that
same day, the Officer refused to defer the Applicants’ removal.
[10]
Currently,
the 9 July 2010 H&C application for permanent residence and the 25 October
2010 PRRA application remain outstanding.
DECISION
UNDER REVIEW
[11]
On
10 November 2010, the Officer denied the Applicants’ request to defer their
removal.
[12]
In
the notes to file, the Officer acknowledged that enforcement officers have
little discretion to defer removal.
[13]
In
response to the Applicants’ filing of the new PRRA application, the Officer
first acknowledged their submissions regarding the change in their
circumstances, namely that the new application was based on the Principal
Applicant’s own circumstances, rather than on those of her former husband’s.
One of these new circumstances was the abuse perpetrated by Murugan against the
Principal Applicant.
[14]
The
Officer then gave several reasons for not deferring the removal pending the
determination of the new PRRA application.
[15]
First,
he noted that, according to section 15.13 of the Enforcement Manual 10, a
subsequent PRRA application does not provide for a statutory stay. Second, the Officer
was not convinced that the Principal Applicant would not be able to seek protection
from the Sri Lankan authorities and social agencies, or that these authorities
and agencies would be unwilling to protect the Principal Applicant. Third, the Officer
noted that several months had lapsed since the couple had separated and since
the Principal Applicant was notified of the negative decisions on the previous
applications. The Officer questioned why the new applications were not filed
until immediately before the removal date.
[16]
The
Officer then explained that the new H&C application was not in of itself an
impediment to removal and would continue to be processed while the Applicants
were in Sri
Lanka.
He acknowledged the information submitted on the Applicants’ establishment in Canada and the
concerns about uprooting the children from Canadian society. However, he also
noted that the children would be in the care and support of their mother, and
should be able to continue to thrive in Sri Lanka after a
period of transition. The Officer also found that insufficient evidence had
been submitted to demonstrate that the Principal Applicant would not be able to
receive treatment and counselling in Sri Lanka for her psychiatric
condition stemming from Murugan’s abuse.
[17]
In
summary, the Officer was not convinced that sufficient new risk had been presented
or that a deferral of removal was warranted in the circumstances.
ISSUES
[18]
The
Applicants raise the following issues:
a.
Whether
the Officer exceeded his jurisdiction by considering the merits of the PRRA and
H&C applications;
b.
Whether
the Applicants’ rights under section 7 of the Charter were breached through the
denial of their procedural entitlements;
c.
Whether
the Officer breached the Applicants’ right to procedural fairness by providing
inadequate reasons;
d.
Whether
the Officer ignored evidence in coming to his Decision.
STATUTORY
PROVISIONS
[19]
The
following provisions of the Act are applicable in this proceeding:
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48. (1) A removal order is enforceable if
it has come into force and is not stayed.
(2) If a removal order is enforceable, the foreign
national against whom it was made must leave Canada immediately and it must be enforced as
soon as is reasonably practicable
…
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).
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48. (1) La
mesure de renvoi est exécutoire depuis sa prise d’effet dès lors qu’elle ne fait
pas l’objet d’un sursis.
(2) L’étranger visé par la mesure de renvoi exécutoire
doit immédiatement quitter le territoire du Canada, la mesure devant être
appliquée dès que les circonstances le permettent
…
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).
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STANDARD OF REVIEW
[20]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, [2008]
SCJ 9, held that a standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to a particular
question before the court is well-settled by past jurisprudence, the reviewing
court may adopt that standard of review. Only where this search proves
fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
[21]
In
Smith v Alliance Pipeline Ltd., 2011 SCC 7, the Supreme Court of Canada
held at paragraph 26 that true questions of jurisdiction or vires are
subject to the standard of correctness. As the second issue is such a question,
the standard of review on this issue is correctness.
[22]
In
Canadian Union of Public Employees (CUPE) v Ontario (Minister of Labour),
[2003] 1 S.C.R. 539, [2003] SCJ No. 28, the Supreme Court of Canada held that
the standard of review with respect to questions of procedural fairness is
correctness. Further, the Federal Court of Appeal in Sketchley v Canada (Attorney
General)
2005 FCA 404 at paragraph 53 held that the “procedural fairness element is
reviewed as a question of law. No deference is due. The decision-maker has
either complied with the content of the duty of fairness appropriate for the
particular circumstances, or has breached this duty.” As the second issue and
third issues are questions of procedural fairness, the standard of review on
this issue is correctness.
[23]
As
the Supreme Court held in Dunsmuir (above, at paragraph 50).
When applying the correctness
standard, a reviewing court will not show deference to the decision maker’s
reasoning process; it will rather undertake its own analysis of the
question. The analysis will bring the court to decide whether it agrees
with the determination of the decision maker; if not, the court will substitute
its own view and provide the correct answer. From the outset, the court must
ask whether the tribunal’s decision was correct.
[24]
Previous
jurisprudence has established that the standard of review of an enforcement Officer’s
refusal to defer removal from Canada is reasonableness (Baron, above at
paragraph 25). This
standard is based on the statutory discretion, albeit limited, granted to an
enforcement Officer under subsection 48(2) of the IRPA and the deference owed
to decision-makers exercising such discretion (Ramirez v Canada
(Minister of Public Safety and Emergency Preparedness), 2010 FC 706, [2010]
FCJ No 861
at paragraph 10). The standard of review with respect to the third issue is
reasonableness.
[25]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and
Immigration) v
Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
ARGUMENTS
The Applicants
The Officer Exceeds His Jurisdiction by Considering
the Merits of the H&C and PRRA Applications
[26]
The
Applicants argue that the Officer exceeded his jurisdiction when he examined
the merits of both the PRRA and H&C applications. They say that an
officer’s jurisdiction when deciding to defer removal is limited to deciding if
there is new and credible evidence which ought to be considered by a qualified PRRA
or H&C officer. When the Officer concluded in the Decision that he was “not
convinced that that the Principal Applicant would not be able to seek
protection from the Sri Lankan authorities and social agencies, as she had done
in Canada, or that they will be unwilling to take measures to counter any
threat presented to her and her children,” the Officer was deciding the PRRA
and H&C applications on their merits.
[27]
The
Applicants say that although an officer’s discretion on deciding in favour of a
deferral of removal request is limited, there are a number of reasons for
deferral that have consistently been accepted in the jurisprudence. These reasons
include family dependency, medical conditions, and the best interests of
children. The discretion must be exercised on a case by case basis. Where an
H&C application is outstanding, both the strength of the application and
its timeliness are relevant factors for the decision-maker to take into account
in exercising the discretion to defer removal.
[28]
In
this case, the Officer was not asked to make a decision on the new applications
He was asked to defer removal until qualified officers could consider and
determine the Applicants’ new H&C and PRRA applications. The Officer ought
to have determined if there was new and credible evidence that should be considered
by qualified officers. The new applications contain new facts, and raise
serious issues that have not previously been assessed.
[29]
First,
while growing up, and as a young wife and mother, the Principal Applicant
experienced significant harassment, violence and discrimination as a Tamil in Sri Lanka. Second,
the Principal Applicant’s husband was abusive to her for many years, and he and
his family in Sri Lanka have issued threats against her for pressing assault
charges against the husband in Canada. There is little protection available to
women in Sri
Lanka
from domestic abuse. She has also sought psychiatric care and has been
diagnosed with post-traumatic stress disorder, depression, and battered woman
syndrome. Third, the Principal Applicant’s entire family (parents and all five
siblings) have fled Sri Lanka. Most of her family members have made successful
refugee claims abroad so she has no remaining family in Sri Lanka. Fourth, the
Applicants are settled in Canada and the Secondary Applicants’ main
language is now English – they speak little Tamil, and no Sinhalese. Both
children fear for their lives should they return to Sri Lanka and have
been diagnosed with emerging anxiety. Their best interests, within the context
of returning to Sri Lanka with their mother as their sole parent, have
not been considered before. Finally, the Principal Applicant fears the
increasing violence against single mothers in Sri Lanka, and the
associated lack of protection available to her there. In addition, as a Tamil
from the northern part of the country, the Principal Applicant has been
labelled as a possible sympathiser, supporter or member of the LTTE, thus placing
her and her children in even greater risk.
The
Officer Breached the Applicants’ Rights Under Section 7 of the Charter
[30]
The
Applicants also say that the Officer’s failure to defer removal so that qualified
officers could fully assess the new information relating to the serious risk of
harm breached the principles of fairness at common law and the principles of
fundamental justice under section 7 of the Canadian Charter of Rights and
Freedoms, part 1 of the Constitution Act 1982 being Schedule B to
the Canada Act 1982 (UK) c. 11 (Charter). They say that, following Pushpanathan
v Canada (Minister of
Citizenship and Immigration), [1998] SCJ No 46, [1998] 1 S.C.R. 982
(Pushpanathan), where a person who is being removed from Canada faces a risk
of harm, this engages the protections of section 7 of the Charter. In Pushpanathan,
at paragraph 157, the Supreme Court of Canada held that
[…] it would be unthinkable if
there were not a fair hearing before an impartial arbiter to determine whether
there are “substantial grounds for believing” that the individual to be
deported would face a risk of torture, arbitrary execution, disappearance or
other such serious violation of human rights. In light of the grave consequences
of deportation in such a case, there must be an opportunity for a hearing
before the individual is deported, and the hearing must comply with all of the
principles of natural justice. As well, the individual in question ought to be
entitled to have the decision reviewed to ensure that it did indeed comply with
those principles. These protections should be available whether or not the
individual is excluded from claiming status as a refugee, to avoid unacceptably
harsh consequences arising from the exclusion.
The Officer
breached the Applicants right to a hearing, in violation of their rights under
section 7 of the Charter, when he did not defer their removal to allow the new
evidence of harm to be considered.
[31]
The
Applicants say that the facts of the case at bar are similar to Park v
Canada (Minister of Citizenship and Immigration), 2001 FCT 46, [2001] FCJ
No 196 in which the Court granted a stay pending the review of a refusal to
defer removal so that a recently filed H&C application could be considered.
In Park, the applicant had also been a victim of domestic violence, and
had not had that risk considered.
The
Officer’s Reasons Were Inadequate
[32]
The
Applicants also say that the Officer’s reasons did not indicate that he
adequately grasped or addressed the issues before him. They say that the
Officer’s statement that
I note that while the information that is
provided in the deferral request with regards to the abuse that Ms.
Jayasundararajah and her children suffered at the hands of Mr. Murugan, has not
been reviewed in the context of the PRRA application, I am not convinced that
Ms. Ms. Jayasundararajah, [sic]
is an
incomplete sentence. This incomplete sentence does not articulate the reasons
why the Officer did not defer removal.
[33]
The
Applicants also say that the Decision does not show how the Officer concluded
that the Secondary Applicants would continue to thrive in Sri Lanka. The Officer
noted in his Decision that the Secondary Applicants would be affected by the
removal. This, the Applicants say, calls for an explanation. Since the Officer
did not sufficiently explain the disconnect between the affect on the Secondary
Applicants of their removal and their ability to continue to thrive in Sri Lanka, the reasons
provided were inadequate.
The
Officer Ignored Evidence
[34]
The
Applicants also argue that the Officer ignored or misunderstood evidence in his
Decision. They say that he ignored evidence on the unavailability of protection
from Sri Lankan authorities and that he did not understand that the risk to the
Applicants was not just from Murugan’s family, but also from the Principal
Applicant’s status as a single woman in Sri Lanka. While the authorities could
protect her from Murugan’s family, they could not protect her from the risk
arising from her status as a single woman.
[35]
The
Principal Applicant also says that the Officer did not address a psychologist’s
report she had submitted in support of her applications when he concluded that
the Principal Applicant would be able to find treatment and counselling in Sri Lanka. That report
showed that the Principal Applicant would suffer harm from deportation beyond
that which is inherent in the deportation process. The issue before the Officer
was not whether the Principal Applicant could seek treatment, but whether she
would suffer harm from being deported.
The Respondent
The Officer Did Not Act Outside
His Jurisdiction
[36]
First,
the Respondent argues that the Officer did not act outside his jurisdiction. The Officer acted in accordance with
Saini v Canada (Minister of
Citizenship and Immigration), [1998] 4 FC 325, [1998] FCJ No 982 where
Justice Frederick Gibson said at paragraph 19 that
[…]
a removal Officer may have regard to cogent evidence of risk in removal to a
particular destination and as to whether or not an appropriate risk assessment
has been conducted and evaluated, solely for the purpose of informing his or
her exercise of discretion regarding deferral.
When the Officer looked
at the Principal Applicants’ access to social services and the ability of Sri Lankan
authorities to protect her, he was considering appropriate evidence. Further,
the Officer took the information about the domestic violence the Principal
Applicant had suffered at the hands of Murugan into account when he scheduled
separate removal dates for both of them.
The Officer Did Not Breach the
Applicants’ Section 7 Rights
[37]
The Respondent
argues that the Applicants’ got all the procedural protections to which they
were entitled. The Principal Applicant met with the Officer and explained her
fears. She delayed in filing her new H&C and PRRA applications until
shortly before her removal, though she was separated from her husband in late
2009 and was informed of the negative decisions on her previous PRRA and H&C
applications on 1 March 2010.
[38]
The case
at bar is distinguishable from Park, above. Unlike Park, in this
case the Applicants have a pending H&C application and intervention
attempts have been made by the authorities to prevent and forestall the abuse
of the Principal Applicant by her former husband. Further, if their H&C
application, which is still in process, is approved, the Applicants will be
allowed to return to Canada; the Principal
Applicant has to live with the consequences of filing the H&C application
when she did.
[39]
The
Respondent also says that the Applicants’ Charter rights are not at issue. In Arenas
Pareja v Canada (Minister of
Citizenship and Immigration) 2008 FC 133 at paragraph 32 where Justice Maurice
Legacé said that
It is not enough for the applicant to raise the Charter and Canada’s international obligations
to contest the PRRA decision and oppose his removal. He must also establish how
the PRRA decision breaches the Charter and Canada’s obligations.
The Applicants are
required to establish how the lack of additional risk assessment violates their
section 7 Charter rights, which they have failed to do.
The Officer Did Not Ignore
Evidence
[40]
The
Respondent says that the Officer did not ignore the evidence that was before
him. The Respondent relies on Bhatia v Canada (Minister of Public Safety and
Emergency Preparedness) 2006 FC 1551, [2006] FCJ No 1936, for the proposition
that there is a presumption that removal officers have considered all the
evidence before them. In light of the Officer’s finding that the Applicants
could seek protection from the local authorities in Sri Lanka, the evidence on
the Applicants’ lack of family in Sri Lanka is irrelevant.
[41]
The
evidence indicates that protection is available to victims of domestic violence
in Sri
Lanka and
the Officer considered this. The Respondent refers to the passing of the Prevention
of Domestic Violence Act in October 2005 and the protection orders issued under
that Act. Shelters are available for abuse victims where challenges arise due
to the male-dominated cultural tendencies in the country. The country evidence
shows that legal frameworks and mechanisms are in place to provide protection
to the Applicants.
[42]
Further,
the Respondent says that, as the Applicants are being removed to Colombo rather than to former
conflict areas in the northern and eastern parts of the country or camps for
internally displaced persons, and neither child is a child soldier, the Applicants
do not match the risk profiles set out in the UNHCR Guidelines.
[43]
The Respondent
says in addition that the Applicants did not provide any evidence that they
were being sought by the Sri Lankan authorities. They do not fit the UNHCR
criteria as young Tamil men from the north and east of the country. Though the Principal
Applicant was once questioned by the Sri Lankan authorities, country evidence shows
no concrete evidence that a database is maintained to track those who have
previously been detained by the police or army. The Applicants do not fall into
the categories of persons with alleged association with the LTTE. Recent
country evidence shows that previously displaced civilians are now exercising
somewhat greater freedom of movement.
[44]
The Respondent
refers to the decisions on the Applicants’ previous immigration applications
(filed along with Murugan), and the associated findings of lack of credibility
and lack of exposure to unusual, undeserved or disproportionate hardship should
the family return to Sri
Lanka.
[45]
The Respondent
also refers the Court to other country evidence in response to the Principal
Applicant’s concern that she is more vulnerable as a single mother with a
teenage daughter. The Applicants do not have the risk profiles described in
this evidence based on geographical location; the evidence only refers to women
in areas outside Colombo, the city where the Applicants
would be returned to.
[46]
On the
Principal Applicant’s psychological suffering, the Respondent refers to Kandiah
v Canada (Solicitor General) 2004 FC 322 and Palka v Canada (Minister of
Public Safety and Emergency Preparedness) 2008 FCA 165, which hold that
suffering arising solely from an applicant’s removal from Canada is not harm
that warrants a stay or deferral of removal.
The Reasons Provided Were
Adequate
[47]
Finally,
the Respondent argues that the Officer provided adequate reasons. The Officer
detailed the scope of his discretion to defer, considered the Applicants’ submissions
and considered the Applicants’ pending PRRA and H&C applications. The Respondent
refers to Varga v Canada (Minister of Citizenship and Immigration), 2006 FCA 394,
for the proposition that the duty of a removal Officer to provide reasons is
minimal.
[48]
The Respondent
says that the Secondary Applicants will not suffer unusual hardship from their
removal to Sri
Lanka,
though they will need to make some adjustments, as established by the decisions
in the Applicants’ previous H&C determinations.
[49] The Respondent says that
the case at bar is similar to Jonas v Canada (Citizenship and
Immigration)
2010 FC 273, [2010] FCJ No 317, at paragraph 23, where Justice Russel Zinn held
that
…
the officer’s reasons include a discussion of the nature of his discretion, an
explanation of what was considered in reaching the decision, and an outline of
the basis on which the discretion was not exercised. In the circumstances of
this case, nothing more was required; the reasons were adequate.
ANALYSIS
[50]
The
deferral request clearly asks the Officer to “defer removal until such time as
qualified PRRA and H&C officers have had a chance to consider the very real
and serious human rights issues which are at stake, both with respect to the
minor children, and [the Applicant] herself.” The request then sets out the
reasons why this is necessary. The situation of the Principal Applicant and her
children has changed significantly since previous PRRA and H&C assessments
were done and the three of them will be at serious risk if returned to Sri Lanka. In fact,
the Principal Applicant has never had her own proper assessment. Past decisions
have involved her abusive and now estranged husband.
[51]
As
the Decision makes clear, the Officer’s approach to the problem is not
responsive to the deferral request. Instead of considering whether removal
should be postponed until qualified officers can complete the new PRRA and H&C
applications, the Officer proceeds to conduct his own assessment of risk.
[52]
It
seems to me that the Officer could and should have examined the materials in
the deferral request to satisfy himself that there was cogent evidence of new
risk that required PRRA and H&C assessments by competent officers. However,
this is not what he does. Instead, he conducts his own risk assessment and
refuses to defer removal in accordance with the deferral request.
[53]
At
the very least, then, the Decision is not responsive to the deferral request.
As Justice Richard Mosley pointed out in Lin v Canada (Minister of
Public Safety and Emergency Preparedness), [2011] FCJ No 971 at
paragraphs 12 and 17
It was not the officer's responsibility to make
the risk assessment. Rather, as noted by Justice Denis Pelletier, as he then
was, at paragraph 50 in Wang v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 148, 13 Imm. L.R. (3d) 289, and as cited recently by
Justice Sean Harrington in his Reasons for Order and Order in the stay
application of Shpati v. Canada (Minister of Public Safety
and Emergency Preparedness), 2010 FC 367, 89 Imm. L.R. (3d) 25 (Shpati
I) at paragraph 41:
The discretion to be exercised is whether or
not to defer to another process which may render the removal order ineffective
or unenforceable, the object of that process being to determine whether removal
of that person would expose him to a risk of death or other extreme sanction.
See also Kaur v. Canada (Minister
of Citizenship and Immigration), 2001 FCT 741, 106 A.C.W.S. (3d) 1092 at para.
15 where Justice Edmond Blanchard describes a removal officer’s discretion this
way:
I am also of the view that discretion to be
exercised by the removal officer does not consist of assessing risk, but rather
one of assessing whether there are special circumstances that would justify her
deferring the removal.
…
In the particular circumstances of this case,
the view of Justice Harrington in Shpati I, above, at paragraph 45 is
particularly apt. He stated that he had difficulty in accepting that “Parliament
intended that it was “reasonably practicable,” for an enforcement officer, who
is not trained in these matters, to deprive an applicant of the very recourse
Parliament has given him”. The officer should have considered that removal
would not be practicable until a specialized assessment of the risk had been
obtained. For that reason, I will grant this application and quash the officer’s
decision. The applicant has filed a PRRA and is entitled, under Canadian law,
to a proper risk assessment. That does not, of course, assume the outcome of
that assessment.
[54]
Having
taken upon himself the assessment of risk, something he was not asked to do and
for which he is not qualified, the Officer then proceeds to commit a series of
errors, some of which were referred to by Justice François Lemieux in his
judgment dealing with the stay motion in this matter. I concur with Justice
Lemieux’s observations and his assessment of the Applicants’ case. The Officer
not only failed to appreciate his own role and jurisdiction in this matter, he
also failed to appreciate the true nature of the risks the Applicants face in
Sri Lanka and so committed several egregious errors. For example, he concluded
that the Applicants could seek assistance from the Principal Applicant’s family
in Sri
Lanka,
thus ignoring the fact that her family had fled Sri Lanka and live in the United
Kingdom,
except for a sister who lives in Canada. He also, in my view,
was selective regarding the evidence concerning protection for women in Sri Lanka, and ignored
evidence that the authorities do not protect women from domestic violence.
Also, the Officer failed to address the advice and opinion of Dr. Thirwell
concerning the psychological harm the Principal Applicant (who is very
vulnerable) will suffer if she has to leave Canada. This is not
harm that is inherent in the process of deportation.
[55]
The
Applicants have raised a range of issues and defects that can be found in the
Decision. I do not think it is necessary to consider them all. As discussed
above, it is my view that the Decision is fundamentally flawed and must be
returned for reconsideration.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
Application
is allowed. The decision is quashed and the matter is returned for
reconsideration by a different officer.
2.
There
is no question for certification.
“James
Russell”
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