Figurado v. Canada (Solicitor General), (2005) 262 F.T.R. 219 (FC)

• Judge: Martineau, J.
• Court: Federal Court (Canada)
• Case Date: December 14, 2004
• Jurisdiction: Canada (Federal)
• Citations: (2005), 262 F.T.R. 219 (FC);2005 FC 347

Figurado v. Can. (2005), 262 F.T.R. 219 (FC)

MLB headnote and full text

Temp. Cite: [2005] F.T.R. TBEd. MR.039

Francis Sebamalai Figurado (applicant) v. The Solicitor General of Canada (respondent)

(IMM-1070-04; 2005 FC 347)

Indexed As: Figurado v. Canada (Solicitor General)

Federal Court

Martineau, J.

March 10, 2005.

Summary:

Figurado, a citizen of Sri Lanka, was denied refugee status in December 1999. He applied for a pre-removal risk assessment (PRRA). The PRRA officer concluded that Figurado was not a Convention refugee or a person in need of protection in December 2003. Figurado applied for leave to apply for judicial review. In March 2004, the removal order issued against Figurado was enforced and he was removed from Canada and sent to Sri Lanka. In September 2004, leave to apply for judicial review was granted.

The Federal Court dismissed the application.

Aliens - Topic 1588

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112-116) - Evidence (IRPA, s. 113(a)) - Figurado, a citizen of Sri Lanka, was denied refugee status - He applied for a pre-removal risk assessment (PRRA) - The PRRA officer concluded that Figurado was not a Convention refugee or a person in need of protection - Figurado applied for judicial review - He argued that the PRRA officer's decision was unlawfully made since the PRRA officer failed to properly assess the risk faced by Figurado and failed to take into account relevant evidence - The Federal Court dismissed the application - There was no error of law or breach of a rule of procedural fairness - There were no findings of fact that were made in a perverse or capricious manner or without regard to the material - The conclusions were supported by the evidence - The PRRA officer carefully considered the potential risk to Figurado - See paragraphs 50 to 58.

Aliens - Topic 1590

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112-116) - Duty of fairness - [See Aliens - Topic 1588 ].

Aliens - Topic 1594

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112-116) - Judicial review (incl. standard of review) - The Federal Court discussed the question of whether an application for judicial review of a negative pre-removal risk assessment became moot when the applicant's removal had been legally enforced - See paragraphs 9 to 39.

Aliens - Topic 1594

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112-116) - Judicial review (incl. standard of review) - Figurado, a citizen of Sri Lanka, was denied refugee status in December 1999 - He applied for a pre-removal risk assessment (PRRA) - The PRRA officer concluded that Figurado was not a Convention refugee or a person in need of protection in December 2003 - Figurado applied for leave to apply for judicial review - In March 2004, the removal order issued against Figurado was enforced and he was removed from Canada and sent to Sri Lanka - In September 2004, leave to apply for judicial review was granted - At issue was whether Figurado's application for judicial review of his negative PRRA became moot when his removal had been legally enforced - The Federal Court stated that "considering the rather unusual and exceptional situation in this case ...; considering the fact that both parties have insisted that the Court examine the merits of this case; and further considering that divergent opinions have been expressed on the issue of mootness leading to uncertainty in this area of the law in immigration matters, I have chosen to exercise my discretion to hear this case on its merits and decide this underlying judicial review application. This however, despite being of the opinion that: first, for the most part, the issues raised in same are moot; and second, the three criteria mentioned in [R. v. Borowski (S.C.C.)], ... for exercising the Court's discretion in a case of mootness, are not all met" - See paragraphs 40 to 49.

Aliens - Topic 1594

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112-116) - Judicial review (incl. standard of review) - Figurado, a citizen of Sri Lanka, was denied refugee status - He applied for a pre-removal risk assessment (PRRA) - The PRRA officer concluded that Figurado was not a Convention refugee or a person in need of protection - Figurado applied for judicial review - The Federal Court applied the pragmatic and functional approach and held that the applicable standard of review was reasonableness simpliciter - See paragraph 51.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - [See first and second Aliens - Topic 1594 ].

Courts - Topic 4044

Federal Court of Canada - Jurisdiction - Trial Division - Immigration and citizenship - [See first and second Aliens - Topic 1594 ].

Cases Noticed:

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 9].

Freitas v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 432; 161 F.T.R. 310 (T.D.), refd to. [para. 11].

Ramoutar v. Minister of Employment and Immigration, [1993] 3 F.C. 370; 65 F.T.R. 32 (T.D.), consd. [para. 11].

Lazareva v. Canada (Minister of Citizenship and Immigration) (2004), 258 F.T.R. 318; 2004 FC 1019, refd to. [para. 11].

Lazareva v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 820; 2004 FC 1372, refd to. [para. 11].

Selliah et al. v. Canada (Minister of Citizenship and Immigration), [2004] N.R. Uned. 132; 2004 FCA 261, refd to. [para. 12].

Kim v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 201; 2003 FCT 321, refd to. [para. 12].

Toth v. Minister of Employment and Immigration (1989), 86 N.R. 302 (F.C.A.), consd. [para. 16].

New Brunswick Electric Power Commission v. Maritime Electric Co. and National Energy Board, [1985] 2 F.C. 13; 60 N.R. 203, refd to. [para. 16].

Suresh v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 206; 249 N.R. 28 (F.C.A.), consd. [para. 17].

De Medeiros v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 11 (T.D.), refd to. [para. 18].

Hosein v. Minister of Employment and Immigration (1992), 53 F.T.R. 86 (T.D.), consd. [para. 19].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 22].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201, addendum [1998] 1 S.C.R. 1222, refd to. [para. 24].

Sharbdeen v. Minister of Employment and Immigration (1994), 167 N.R. 158 (F.C.A.), refd to. [para. 26].

Forde v. Canada (Minister of Citizenship and Immigration) (1997), 210 N.R. 194 (F.C.A.), refd to. [para. 26].

Turanskaya v. Canada (Minister of Citizenship and Immigration) (1997), 210 N.R. 235 (F.C.A.), refd to. [para. 26].

Rafuse v. Pension Appeals Board (Can.) et al. (2002), 286 N.R. 385; 2002 FCA 31, refd to. [para. 26].

Owusu v. Canada (Minister of Citizenship and Immigration), [2004] 2 F.C.R. 635; 318 N.R. 300; 2004 FCA 38, refd to. [para. 26].

Lazareva v. Canada (Minister of Citizenship and Immigration), [2005] N.R. Uned. 27; 2005 FCA 39, refd to. [para. 26].

Melo v. Canada (Minister of Citizenship and Immigration) (2000), 188 F.T.R. 39 (T.D.), consd. [para. 28].

Ero v. Canada (Minister of Citizenship and Immigration) (2002), 226 F.T.R. 311; 2002 FCT 1276, consd. [para. 29].

Resulaj v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 675; 2003 FC 1168, refd to. [para. 33].

El Ouardi v. Canada (Solicitor General) (2005), 332 N.R. 76; 2005 FCA 42, consd. [para. 38].

Farhadi v. Canada (Minister of Citizenship and Immigration) (2000), 257 N.R. 158 (F.C.A.), refd to. [para. 40].

Suresh v. Canada (Minister of Citizenship and Immigration, [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 40].

Suresh v. Canada (Minister of Citizenship and Immigration) (1999), 116 O.A.C. 329; 42 O.R.(3d) 797 (Div. Ct.), affing. (1998), 68 O.T.C. 1; 38 O.R.(3d) 267 (Gen. Div.), refd to. [para. 41].

Shahi v. Canada (Minister of Citizenship and Immigration), [1999] F.T.R. Uned. 736 (T.D.), refd to. [para. 51].

Zolotareva v. Canada (Minister of Citizenship and Immigration) (2003), 241 F.T.R. 289; 2003 FC 1274, refd to. [para. 51].

Sidhu v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 28; 2004 FC 39, refd to. [para. 51].

Harb v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2003), 302 N.R. 178; 2003 FCA 39, refd to. [para. 51].

Yusuf v. Minister of Employment and Immigration (1995), 179 N.R. 11 (F.C.A.), refd to. [para. 52].

Joseph v. Canada (Minister of Citizenship and Immigration) (2004), 248 F.T.R. 105; 2004 FC 344, refd to. [para. 52].

Fabian v. Canada (Minister of Citizenship and Immigration) (2003), 244 F.T.R. 223; 2003 FC 1527, refd to. [para. 55].

Zheng v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 140 (T.D.), refd to. [para. 56].

Thavachelvam v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 974; 2004 FC 1604, refd to. [para. 56].

Canada (Minister of Employment and Immigration) v. Malgorzat, [1991] F.C.J. No. 337 (F.C.A.), refd to. [para. 57].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 57].

Linaogo v. Canada (Solicitor General), [2004] F.T.R. Uned. 156; 2004 FC 335, refd to. [para. 59].

Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.), refd to. [para. 61].

Authors and Works Noticed:

Canada, Immigration and Refugee Protection Act Regulatory Impact Analysis Statement, Canada Gazette, (December 15, 2001), Part I, pp. 4550, 4552 [para. 40].

Counsel:

Leigh Salsberg and Lorne Waldman for the applicant;

Mielka Visnic, for the respondent.

Solicitors of Record:

Waldman & Associates, Toronto, Ontario, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard on December 14, 2004, at Toronto, Ontario, before Martineau, J., of the Federal Court, who delivered the following decision on March 10, 2005.