Toronto, Ontario, December 7, 2005
PRESENT: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The sole issue in this application for judicial review is whether the applicant was denied procedural fairness by a prolonged delay in providing him with a completed pre-removal risk assessment. In the absence of any other evidence of prejudice, is the applicant inherently prejudiced by delay alone?
[2] The applicant is a 39 year-old citizen of Pakistan who came to Canada in 1990 and claimed Convention refugee status. In 1993 he married a Canadian citizen and withdrew his refugee claim. Shortly after their marriage, the applicant's wife sponsored him for permanent resident status from within Canada and the applicant became a landed immigrant in March 1995. This marriage has produced three children.
[3] The applicant was convicted on July 30, 1998 of the offences of sexual assault, sexual interference with a minor under 14 years and invitation to sexual touching resulting from the sexual abuse of a child over a period of three years. He was sentenced to five years in prison and was released in February 2002.
[4] Due to his criminal convictions, the applicant is a member of the inadmissible class of persons described by subsection 36(1) (a) of the Immigration and Refugee Protection Act. In May 1999 he was served with a notice pursuant to subsection 70(5) and paragraph 53(1) of the former legislation, the Immigration Act. On October 6, 1999 the Minister declared the applicant to be a danger to the public. Justice Hugessen overturned the Minister's opinion for failure to disclose the reports on which it was based and sent the matter back for redetermination (see Qazi v. Canada(Minister of Citizenship and Immigration), (2000), 192 F.T.R. 136).
[5] The applicant was released from incarceration in February 2002 after an immigration detention review. While in detention, an inquiry into his case was held and his permanent resident status was revoked. In October 2002, the applicant was notified in person that he was eligible to apply for a pre-removal risk assessment (PRRA). The applicant submitted an application for a PRRA in November 2002 on the basis of a claimed fear of persecution in Pakistan based on his and his family's political activities during the 1980s.
[6] Counsel for the applicant made extensive submissions regarding the situation in Pakistan as it was in 2002. Despite these submissions, the applicant received a negative risk assessment on March 7, 2003. However, at that time the applicant was permitted, through counsel, to make written representations on the errors and omissions in the report. Counsel replied on March 17, 2003.
[7] On Monday, February 21, 2005, nearly two years after replying to the negative risk assessment, the applicant was called in to receive the decision with respect to his application for protection. The applicant attended at the PRRA office on March 15, 2005 as directed. At that time he received the negative PRRA decision dated April 11, 2003. No explanation has been offered for this delay. Respondent's counsel characterizes it simply as a mistake.
[8] The PRRA officer indicated in his decision that he had carefully reviewed the submissions and documentary evidence submitted by the applicant, along with a risk opinion dated March 7, 2003 and determined that the applicant is not a person in need of protection.
[9] The applicant does not challenge the substantive content of the PRRA decision but submits that he has been denied procedural fairness because of the length of time that has expired since the report was completed. He submits that the assessment of risk in a PRRA is intended to be current and forward-looking. Timeliness and currency are two fundamental elements of the PRRA process. For a risk assessment to be of any value, it must be up to date. Under no circumstances, the applicant submits, can a PRRA made a full two years before any action is taken to remove the applicant from Canada be in accordance with the principles of natural justice.
[10] The applicant relies upon Chapter 3, section 2 of the Protected Persons Manual used by Citizenship and Immigration Canada employees. In particular, the section states:
PRRA has the same protection objectives as the IRB process. It is based on the same grounds and confers the same protection and status, except in cases described in [A112(3)]. PRRA is therefore the government's response to Federal Court jurisprudence, which has required that an assessment be made for persons who allege risk upon removal. It is also the government's response to Supreme Court jurisprudence, which has suggested that everyone, including serious criminals, and persons who pose a threat to national security, are entitled to a risk assessment. PRRA seeks to bring more efficiency to risk assessments by merging into one process for the majority of applicants what was done in the old process through PDRCC and the risk element of H & C. The merger of procedures is achieved by ensuring that PRRA is undertaken immediately before removal. Persons remain free to make H & C applications, but the system is designed so that most persons will apply only once, shortly before removal. [Emphasis added]
[11] The respondent submits that the applicant must demonstrate that he has been prejudiced by the delay in the delivery of the decision, that conditions in Pakistan have changed such that the PRRA is stale and that a new assessment might be different today. Further, the respondent contends, it remains open to the applicant to seek a second PRRA prior to his removal under s. 165 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[12] The applicant says that a fresh PRRA application would not provide him with the protection of an administrative deferral of removal which he would be entitled to if successful on this application and the original PRRA being re-done. It is not good enough, the applicant submits, that he could request a deferral or seek a stay of removal from this Court pending the completion of a fresh PRRA.
[13] Section 18.1 (4) (b) of the Federal Courts Act, R.S.C. 1985, c. F-7,allows for the granting of relief if the Court is satisfied that the federal board failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe. When considering an allegation of a denial of natural justice, the Court need not engage in an assessment of the appropriate standard of review. Rather, the court is required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to: Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Canadian Union of Public Employees v. Ontario(Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29.
[14] In Pathmanathan v. Canada(Minister of Citizenship and Immigration) (2005), 25 Admin. L.R. (4th) 226, 2005 FC 6 Justice James O'Reilly recognized that while some delay in informing an applicant of a negative PRRA decision may be unavoidable, there are situations where delay will seriously prejudice an applicant and thereby taint the assessment of risk by the officer. In such situations, the possibility for refoulement of a person in need of protection is extremely high, and there is a need for a remedy where the risk assessment has become stale.
[15] Justice O'Reilly concluded however, that in the circumstances before him, a delay of five weeks, judicial review of the officer's decision was not the appropriate remedy. In noting that PRRA officers should be expected to keep their assessments reasonably current, he observed that PRRA applicants must also bear some responsibility for ensuring that their applications are based on current conditions. They can supplement their submissions to the PRRA officer. They can also request a second risk assessment and request a deferral of removal pending its completion or seek a stay from this Court.
[16] Pathmanathan, above, leaves open the question of when a PRRA will become unreasonably stale. The respondent submits that the length of time that has passed is not the only factor in the calculation. The court must be satisfied that the applicant has been prejudiced by the delay.
[17] In this case, the applicant has adduced no evidence to demonstrate that he has in fact been prejudiced. While the applicant contends that he is precluded from offering such evidence by the general principle that only the evidence that was before the administrative decision maker may be considered on judicial review, affidavit evidence is always admitted on issues of procedural fairness and jurisdiction: Keeprite Workers' Independent Union v. Keeprite Products Ltd., [1980] O.J. No. 12 (Ont. H.C.J.) (QL); OntarioAssn.of Architects v.Assn.of Architectural Technologists of Ontario, (2002) 291 N.R.61, 2002 FCA 218 at para.30; McFadyen v.Canada (Attorney General) 2005 FCA 360, [2005] F.C.J. No. 1817 (QL).
[18] The Federal Court of Appeal has dealt with the issue of institutional delay in the immigration context, most notably in the decisions of Akthar v. Canada(Minister of Employment and Immigration), [1991] 3 F.C. 32, 14 Imm. L.R. (2d) 39 [Akthar cited to F.C.] and Rabbat v. Canada(Minister of Employment and Immigration), [1986] 2 F.C. 46 aff'd F.C.A, leave to appeal to S.C.C. refused (1987), 80 N.R. 319. The Court has made it clear that in order to succeed on an application for judicial review the applicant must demonstrate both that prejudice has arisen as a result of the delay, and that the delay is unreasonable.
[19] In Akthar, above at paragraph 20 the Court of Appeal held that in order for a refugee claimant to claim a breach of his Charter rights based on delay, there must be some unfairness or prejudice suffered as a result of the delay. The delay suffered by the applicants in that case varied from just over two and a half years to just under three years.
[20] In Budh Singh Gill v. Canada(Minister of Employment and Immigration), [1984] 2 F.C. 1025, (1985), 60 N.R. 241 (F.C.A.) [Gill cited to F.C.] the Court of Appeal considered whether or not an unreasonable delay constitutes a breach of the principles of fundamental justice justifying the quashing of the decision. The Court stated at 1028-1029:
It may well be that the recently discovered administrative duty to act fairly encompasses a duty not unreasonably to delay to act; or, put positively, that the procedural duty to act fairly includes a duty to proceed within a reasonable time. It does not by any means follow, however, that the breach of such a duty would give rise to the setting aside of the tardy action when it is finally taken. The remedy surely is to compel timely action rather than to annul one that, though untimely, may otherwise be correct.
[21] This decision was cited with approval in Dacosta v. Canada(Minister of Employment and Immigration) [1993] F.C.J. No. 674 (F.C.T.D) (QL) at paragraph 6, "[h]ere, there being absolutely no evidence concerning any prejudice to the applicant resulting from the delay, no remedy is available either under the Charter or the principles of fundamental justice."
[22] In Maraj v. Canada(Minister of Employment and Immigration) (1993), 62 F.T.R. 256, 19 Imm. L.R. (2d) 90 (F.C.T.D.), the Court dealt with the issue of whether a two year delay in communicating a negative humanitarian and compassionate decision was a denial of natural justice. Justice Barbara Reed held at 102:
While the delay was unfortunate, there is also no evidence that the applicants sought to ascertain the nature of that decision during the whole period of time in question. In those circumstances I do not think the applicants can rely on the delay as a factor demonstrating bias or a lack of fairness.
[23] Between March 2003 and March 2005 the applicant made no inquiries regarding his PRRA application, nor did he provide more current information to the respondent demonstrating that he was at risk. As Justice Reed suggested in Maraj, above, one might conclude that the applicant has in fact benefited from the delay as it has resulted in a two year period in which removal action was not taken against him. During that time, he has submitted a further application for landing on humanitarian and compassionate grounds.
[24] In the absence of any evidence demonstrating that the applicant has been prejudiced by the delay in providing him with the PRRA decision, I am unable to conclude that the applicant has been denied procedural fairness or natural justice. I note again, that it remains open to the applicant to seek a second PRRA, and while that is pending, to request deferral of removal or to seek a stay of removal from this Court.
[25] Had I decided that there was a breach of natural justice resulting from the delay, the respondent submits that this would be an appropriate case for the exercise of the principle that a remedy may be withheld where the ultimate outcome is inevitable and would have been the same had the reviewable error not have been made: Mobil Oil Canada Ltd. et al v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202 at 228, 111 D.L.R. (4th) 1; Yassine v. Canada(Minister of Employment and Immigration), [1994] F.C.J. No. 949 (QL) at paragraphs 9-10, 172 N.R. 308 (F.C.A.).
[26] I do not need to decide that question in the circumstances of this case and will leave it for another day when prejudice has been demonstrated.
[27] No questions of general importance were proposed by the parties and none are certified.
ORDER
THIS COURT ORDERS that the application is dismissed. No questions are certified.
"Richard G. Mosley"
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1706-05
STYLE OF CAUSE: MOHAMMAD KAFEEL QAZI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: DECEMBER 6, 2005
PLACE OF HEARING: TORONTO, ONTARIO.
REASONS FOR ORDER AND
ORDER BY: MOSLEY J.
APPEARANCES BY:
Ralph Dzegniuk FOR THE APPLICANT
Bridget O=Leary FOR THE RESPONDENT
SOLICITORS OF RECORD:
Green and Spiegel
Barristers and Solicitors
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of
Canada FOR THE RESPONDENT