Burton v. Canada (Minister of Citizenship and Immigration), 2014 FC 910

• Judge: Gleason, J.
• Court: Federal Court (Canada)
• Case Date: May 14, 2014
• Jurisdiction: Canada (Federal)
• Citations: 2014 FC 910;(2014), 464 F.T.R. 138 (FC)

Burton v. Can. (M.C.I.) (2014), 464 F.T.R. 138 (FC)

MLB headnote and full text

Temp. Cite: [2014] F.T.R. TBEd. SE.033

Raoul Andre Burton (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-6595-13; 2014 FC 910)

Indexed As: Burton v. Canada (Minister of Citizenship and Immigration)

Federal Court

Gleason, J.

September 23, 2014.

Summary:

Burton, a citizen of Jamaica, lost his permanent resident status after being convicted of participating in a criminal organization. Burton became an informant for police and testified against a fellow gang member in a high-profile trial. In 2011, Burton's pre-removal risk assessment (PRRA) application was dismissed. The PRRA officer acknowledged that Burton might face a risk of harm from gang members in Jamaica, but determined that Burton had not rebutted the presumption of adequate state protection in that country. Burton applied for judicial review.

The Federal Court, in a decision reported at [2013] F.T.R. Uned. 257, allowed the application, finding that the PRRA officer erred by looking at the issue of state protection generally rather than focussing on the ability of the Jamaican authorities to protect those who provided information to police about gang-related crimes. The matter was remitted to a different PRRA officer for redetermination in accordance with the court's reasons. The PRRA application was dismissed for a second time. In concluding that Burton would not face a risk from gang members if returned to Jamaica, the second PRRA officer did not discuss either the first PRRA decision or the court's judicial review decision. Burton applied for judicial review.

The Federal Court allowed the application and remitted the matter to another PRRA officer for redetermination in accordance with the court's reasons, which required that the officer (1) consider the availability of adequate state protection for Burton in Jamaica in light of his profile as a gang member turned informant; and (2) not depart from the risk determination made by the first PRRA officer unless there were clear and compelling reasons for doing so.

Administrative Law - Topic 24

General - Abuse of process - What constitutes - Burton, a citizen of Jamaica, was a gang member and police informant in Toronto - An immigration officer dismissed his pre-removal risk assessment (PRRA) application, acknowledging that Burton might face a risk of harm if returned to Jamaica, but concluding that he failed to rebut the presumption of adequate state protection - Mactavish, J., allowed Burton's judicial review application, finding that the PRRA officer erred by looking at the issue of state protection generally rather than focussing on the ability of the Jamaican authorities to protect informants - The matter was remitted for redetermination by a different officer in accordance with Mactavish, J.'s reasons - The second PRRA officer, who dismissed Burton's application on the grounds that Burton would not face a risk if returned to Jamaica, did not discuss Mactavish, J.'s decision - Burton applied for judicial review, arguing that the second PRRA decision was an abuse of process because it flew in the face of Mactavish, J.'s decision - The Federal Court held that the nature of the PRRA inquiry rendered the doctrine of abuse of process inapplicable in this case - PRRA officers were specifically tasked with re-examining the issue of whether an applicant faced a forward-looking risk based on facts that had not been previously assessed - The abuse of process doctrine therefore did not prevent a PRRA officer from re-examining the issue of risk - See paragraphs 15 to 28.

Administrative Law - Topic 24

General - Abuse of process - What constitutes - Burton, a citizen of Jamaica, was a gang member and police informant in Toronto - An immigration officer dismissed his pre-removal risk assessment (PRRA) application, acknowledging that Burton might face a risk of harm if returned to Jamaica, but concluding that he failed to rebut the presumption of adequate state protection - Mactavish, J., allowed Burton's judicial review application, finding that the PRRA officer erred by looking at the issue of state protection generally rather than focussing on the ability of the Jamaican authorities to protect informants - The PRRA officer's decision was set aside and the matter was remitted for redetermination by a different officer in accordance with Mactavish, J.'s reasons - The second PRRA officer, who dismissed Burton's application on the grounds that Burton would not face a risk if returned to Jamaica, did not discuss Mactavish, J.'s decision - Burton applied for judicial review, arguing that the second PRRA decision was an abuse of process because it flew in the face of Mactavish, J.'s decision - The Federal Court held that the nature of Mactavish, J.'s decision rendered the abuse of process doctrine inapplicable - The effect of a judgment setting a decision aside was to extinguish the decision for all purposes - The first PRRA decision no longer existed and accordingly could not provide the basis for application of the doctrine of abuse of process - See paragraphs 29 to 31.

Administrative Law - Topic 5009

Judicial review - Certiorari - Effect of order to quash - [See second Administrative Law - Topic 24 ].

Aliens - Topic 1582

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112 - 116) - Jurisdiction of pre-removal risk assessment officers - Burton, a citizen of Jamaica, was a gang member and police informant in Toronto - An immigration officer dismissed his pre-removal risk assessment (PRRA) application, acknowledging that Burton might face a risk of harm if returned to Jamaica, but concluding that he failed to rebut the presumption of adequate state protection - Mactavish, J., allowed Burton's judicial review application, finding that the PRRA officer erred by looking at the issue of state protection generally rather than focussing on the ability of the Jamaican authorities to protect informants - The matter was remitted for redetermination by a different officer in accordance with Mactavish, J.'s reasons - The second PRRA officer, who dismissed Burton's application on the grounds that Burton would not face a risk if returned to Jamaica, did not discuss the first PRRA decision or Mactavish, J.'s decision - The Federal Court allowed Burton's application for judicial review - The second PRRA officer failed to address a key issue - At a minimum, the officer was required to fully explain why he was departing from the previous risk determination - In light of Mactavish, J.'s decision and the principle of stare decisis, the second PRRA officer was required to adopt the same risk conclusion as the first PRRA officer unless there were new facts which could have reasonably given rise to a different risk conclusion - No such facts were present here - See paragraphs 33 to 51.

Aliens - Topic 1582

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112 - 116) - Jurisdiction of pre-removal risk assessment officers - [See first Administrative Law - Topic 24 ].

Aliens - Topic 1595

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112 - 116) - Reasons for decision - [See first Aliens - Topic 1582 ].

Courts - Topic 17

Stare decisis - Authority of judicial decisions - General principles - Scope of stare decisis - [See first Aliens - Topic 1582 ].

Cases Noticed:

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 9].

British Columbia (Workers' Compensation Board) v. Figliola - see Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.).

Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al., [2011] 3 S.C.R. 422; 421 N.R. 338; 311 B.C.A.C. 1; 529 W.A.C. 1; 2011 SCC 52, refd to. [para. 9].

Penner v. Niagara Regional Police Services Board et al., [2013] 2 S.C.R. 125; 442 N.R. 140; 304 O.A.C. 106; 2013 SCC 19, refd to. [para. 9].

Muhammad v. Canada (Minister of Citizenship and Immigration) (2014), 454 F.T.R. 161; 2014 FC 448, refd to. [para. 12].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 18].

Executive Director of Assessment (N.B.) v. Ganong Bros. Ltd. et al. (2004), 271 N.B.R.(2d) 43; 712 A.P.R. 43; 2004 NBCA 46, refd to. [para. 18].

Raza v. Canada (Minister of Citizenship and Immigration) et al. (2007), 370 N.R. 344; 162 A.C.W.S.(3d) 1013; 2007 FCA 385, refd to. [para. 22].

Sanchez et al. v. Canada (Minister of Citizenship and Immigration) (2007), 360 N.R. 344; 155 A.C.W.S.(3d) 937; 2007 FCA 99, refd to. [para. 25].

Fernandopulle v. Canada (Minister of Citizenship and Immigration) (2005), 331 N.R. 385; 253 D.L.R.(4th) 425; 2005 FCA 91, refd to. [para. 25].

Yusuf v. Minister of Employment and Immigration (1995), 179 N.R. 11 (F.C.A.), refd to. [para. 25].

Pour-Shariati v. Minister of Employment and Immigration, [1995] 1 F.C. 767; 89 F.T.R. 262 (T.D.), refd to. [para. 25].

Rodriguez et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 778; 2012 FC 1331, refd to. [para. 30].

Zacarias v. Canada (Minister of Citizenship and Immigration) (2012), 419 F.T.R. 135; 2012 FC 1155, refd to. [para. 30].

Miah v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 733; 2007 FC 2005, refd to. [para. 30].

Lee v. Canada (Minister of Citizenship and Immigration) (2003), 235 F.T.R. 260; 2003 FCT 743, refd to. [para. 30].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 34].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 34].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 34].

Construction Labour Relations v. Driver Iron Inc. - see Driver Iron Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union No. 720 et al.

Driver Iron Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union No. 720 et al., [2012] 3 S.C.R. 405; 437 N.R. 202; 539 A.R. 17; 561 W.A.C. 17; 2012 SCC 65, refd to. [para. 36].

Library of Parliament v. Canadian Association of Professional Employees (2013), 453 N.R. 264; 2013 FCA 237, refd to. [para. 36].

Herrera Andrade v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 742; 2012 FC 1490, refd to. [para. 36].

Lemus et al. v. Canada (Minister of Citizenship and Immigration) (2014), 461 N.R. 310; 2014 FCA 114, refd to. [para. 37].

Canada (Minister of Citizenship and Immigration) v. Thanabalasingham (2004), 315 N.R. 91; 2004 FCA 4, refd to. [para. 41].

Canada (Minister of Citizenship and Immigration) v. Thanabalasingham (2004), 315 N.R. 91; 2004 FCA 4, refd to. [para. 41].

Kippax v. Canada (Minister of Citizenship and Immigration) (2013), 434 F.T.R. 177; 2013 FC 655, refd to. [para. 41].

Muhammad v. Canada (Minister of Public Safety and Emergency Preparedness), [2013] F.T.R. Uned. 71; 2013 FC 203, refd to. [para. 41].

Siddiqui v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 13; 2007 FC 6, refd to. [para. 42].

Osagie v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 568; 2007 FC 852, refd to. [para. 42].

Alexander v. Canada (Minister of Citizenship and Immigration) (2009), 357 F.T.R. 222; 2009 FC 1305, refd to. [para. 42].

Rusznyak et al. v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 99; 2014 FC 255, refd to. [para. 42].

Régie des rentes du Québec v. Canada Bread Co. et al., [2013] 3 S.C.R. 125; 448 N.R. 36; 2013 SCC 46, refd to. [para. 46].

Commissioner of Competition v. Superior Propane Inc. et al. (2003), 300 N.R. 104; 223 D.L.R.(4th) 55; 2003 FCA 53, refd to. [para. 46].

Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.), refd to. [para. 57].

Zazai v. Canada (Minister of Citizenship and Immigration) (2004), 318 N.R. 365; 2004 FCA 89, refd to. [para. 57].

Varela v. Canada (Minister of Citizenship and Immigration) (2009), 391 N.R. 366; 2009 FCA 145, refd to. [para. 57].

Zhang v. Canada (Minister of Citizenship and Immigration) (2013), 446 N.R. 382; 2013 FCA 168, refd to. [para. 57].

Authors and Works Noticed:

Waldman, L., Immigration Law and Practice (2nd Ed. 2005) (Looseleaf), p. 11.321 [para. 29].

Counsel:

Anthony Navaneelan, for the applicant;

Martin Anderson, for the respondent.

Solicitors of Record:

Anthony Navaneelan, J.D. Mamann, Sandaluk & Kingwell LLP, Migration Law Chambers, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application for judicial review was heard at Toronto, Ontario, on May 14, 2014, before Gleason, J., of the Federal Court, who delivered the following judgment and reasons at Ottawa, Ontario, on September 23, 2014.