Federal Court


Officer failed to appreciate true nature of risks applicants faced

Application for judicial review of denial of request for deferral of removal until humanitarian and compassionate (“H&C”) and pre-removal risk assessment (“PRRA”) applications were processed. Applicants were Tamil citizens of Sri Lanka. Principal applicant, her two children and her husband arrived in Canada in September 2004 and were granted temporary resident status. Subsequently, they applied unsuccessfully for refugee status. They applied for PRRA in December 2006 which was refused. They applied for leave and judicial review of negative PRRA decision, which was denied in June 2010. Husband had been charged with assaulting principal applicant and was removed from Canada in November 2010. Applicants, independently of husband, filed new applications for permanent residence on H&C grounds in July 2010. Their applications included submissions on new risks that they alleged had not previously been assessed, including new grounds of personalized risk, new information regarding husband’s family in Sri Lanka, and risks from authorities in Sri Lanka based on suspicions that principal applicant was Liberation Tigers of Tamil Eelam sympathizer. Applicants were scheduled for removal November 15, 2010. Applicants filed another request for PRRA on October 25, 2010. On November 1, 2010, applicants made formal request to Greater Toronto Enforcement Centre for deferral of their removal until their applications for permanent residence on H&C grounds and their new PRRAs were assessed by qualified officers. Officer acknowledged that new PRRA application was based on principal applicant’s own circumstances, rather than on those of her former husband’s. One of these new circumstances was abuse perpetrated by husband against principal applicant. Officer was not convinced that principal applicant would not be able to seek protection from Sri Lankan authorities and social agencies, or that these authorities and agencies would be unwilling to protect principal applicant. Officer noted that several months had lapsed since principal applicant was notified of negative decisions on previous applications. Officer questioned why new applications were not filed until immediately before removal date. Officer was not convinced that sufficient new risk had been presented or that deferral of removal was warranted in circumstances. Application granted. Officer not only failed to appreciate his own role and jurisdiction in this matter, he also failed to appreciate true nature of risks applicants faced in Sri Lanka and so committed several egregious errors. Officer concluded that applicants could seek assistance from principal applicant’s family in Sri Lanka, ignoring fact that her family had fled Sri Lanka and lived in United Kingdom, except for sister who lived in Canada. Officer was selective regarding evidence concerning protection for women in Sri Lanka, and ignored evidence that authorities did not protect women from domestic violence. Officer failed to address advice and opinion concerning psychological harm principal applicant (who was very vulnerable) would suffer if she had to leave Canada. This was not harm that was inherent in process of deportation. Decision was fundamentally flawed and must be returned for reconsideration.

Jayasundararajah v. Canada (Minister of Public Safety and Emergency Preparedness)

(Nov. 16, 2011, F.C., Russell J., File No. IMM-6584-10) 210 A.C.W.S. (3d) 488 (22 pp.).

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