Thiruchelvam v. Canada (Minister of Citizenship and Immigration), (2015) 480 F.T.R. 139 (FC)

• Judge: Brown, J.
• Court: Federal Court (Canada)
• Case Date: April 28, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 480 F.T.R. 139 (FC);2015 FC 585

Thiruchelvam v. Can. (M.C.I.) (2015), 480 F.T.R. 139 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. MY.023

Amalan Thiruchelvam (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-2864-14; 2015 FC 585)

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

Federal Court

Brown, J.

May 5, 2015.

Summary:

The applicant, a Sri Lankan citizen of Tamil ethnicity, claimed refugee protection. The Refugee Protection Division found that the applicant was excluded from refugee protection because there were serious reasons to believe that he belonged to the terrorist wing of the Tamil Eelam Liberation Organization. A Ministerial Delegate dismissed the applicant's application for a pre-removal risk assessment. The applicant applied for judicial review.

The Federal Court allowed the application and remitted the matter to a differently constituted decision-maker for redetermination in accordance with the court's reasons.

Aliens - Topic 1583

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112-116) - Application for protection (IRPA, s. 112) (incl. procedure and considerations) - [See Aliens - Topic 1590 ].

Aliens - Topic 1590

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112-116) - Duty of fairness - Thiruchelvam, a Sri Lankan citizen of Tamil ethnicity, claimed refugee protection - The Refugee Protection Division found that he was excluded from refugee protection because there were serious reasons to believe that he belonged to the terrorist wing of the Tamil Eelam Liberation Organization (TELO) - Thiruchelvam applied for a pre-removal risk assessment (PRRA) - A PRRA officer issued a report favourable to Thiruchelvam in 2007 - However, because the officer was not delegated to make a final decision, the risk assessment was forwarded to the Canada Border Services Agency (CBSA), who issued an assessment favourable to Thiruchelvam in 2013 - There was no explanation for the nearly six year delay - In 2014, a Ministerial Delegate reviewed but rejected the PRRA officer's report, noting that it was outdated - She proceeded to conduct her own analysis and ultimately rejected the application - The Federal Court allowed Thiruchelvam's application for judicial review - The Minister's Delegate was duty bound to consider the PRRA and CBSA reports - These reports had to be given to Thiruchelvam and he had a statutory right to comment on them - The right of comment was rendered nugatory if the PRRA was so out of date that it was of no use to Thiruchelvam or the Minister - Six years did not meet the legal requirement for providing a PRRA in a timely manner - Thiruchelvam was denied procedural fairness.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 19].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 20].

Sketchley v. Canada (Attorney General) (2006), 344 N.R. 257; 2005 FCA 404, refd to. [para. 20].

Muhammad v. Canada (Minister of Citizenship and Immigration) (2014), 454 F.T.R. 161; 2014 FC 448, refd to. [para. 21].

Ochapowace First Nation et al. v. Canada (Attorney General) et al. (2007), 316 F.T.R. 19; 2007 FC 920, affd. (2009), 389 N.R. 87; 2009 FCA 124, leave to appeal denied (2009), 402 N.R. 391 (S.C.C.), refd to. [para. 22].

Ragupathy v. Canada (Minister of Public Safety and Emergency Preparedness) (2006), 303 F.T.R. 178; 2006 FC 1370, refd to. [para. 25].

Navaratnam v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 99; 2015 FC 244, refd to. [para. 29].

Ezokola v. Canada (Minister of Citizenship and Immigration) (2013), 447 N.R. 254; 2013 SCC 40, refd to. [para. 34].

Counsel:

Sarah L. Boyd, for the applicant;

Monmi Goswami, for the respondent.

Solicitors of Record:

Jackman, Nazami and Associates, Toronto, Ontario, for the applicant;

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

This application for judicial review was heard at Toronto, Ontario, on April 28, 2015, before Brown, J., of the Federal Court, who delivered the following judgment and reasons on May 5, 2015.