GOWRI VASANTHAKUMAR SHAKTHIPRIYA VASANTHAKUMAR SHIESWARAN VASANTHAKUMAR Applicants v. THE MINISTER OF CITIZENSHIP, 2012 FC 74

Date: 20120118 Docket: IMM-4493-11 Citation: 2012 FC 74 Toronto , Ontario, January 18, 2012 PRESENT: The Honourable Madam Justice Mactavish BETWEEN: GOWRI VASANTHAKUMAR SHAKTHIPRIYA VASANTHAKUMAR SHIESWARAN VASANTHAKUMAR Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] Gowri Vasanthakumar and her children seek judicial review of the decision of a Pre-removal Risk Assessment [PRRA] officer who found that the family would not be at risk if they were forced to return to Sri Lanka .

As will be explained below, I am not persuaded that the family was treated unfairly in the PRRA process. As a result, their application for judicial review will be dismissed. Background [ 2 ] At the time the applicants filed their PRRA application on August 28, 2008, their application for permanent residence had been approved in principle. [ 3 ] In apparent anticipation that they would receive permanent residence in Canada , the applicants’ PRRA application was brief. At several places in the application the applicants made reference to further submissions that were to follow.

However, no such submissions were ever provided by the applicants. [ 4 ] On July 28, 2010, the family’s application for permanent residence was refused. Ten months later, the PRRA officer rendered the negative decision in relation to their PRRA application . [ 5 ] The applicants submit that, in the circumstances, fairness required the PRRA officer to notify them that their PRRA

application was being “reactivated” and afford them a reasonable opportunity to file supplementary submissions in support of theirapplication. Analysis [6] Where the issue for the reviewing court is one of procedural fairness arises, the Court is required to determine whether theprocess followed by the decision-maker satisfied the level of fairness required in all of the circumstances: see Canada (Citizenship andImmigration) v.

Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 43. [7] It is well established that the burden is on PRRA applicants to put all of the information that they wish to have considered inconnection with their application before the PRRA officer: Cirahan v. Canada 2004 FC 1603, 135 A.C.W.S. (3d) 457 at para. 13;Zununaj v. Canada (Minister of Citizenship and Immigration), 2005 FC 1715, 144 A.C.W.S. (3d) 927; Lupsa v. Canada (Minister ofCitizenship and Immigration), 2007 FC 311, 159 A.C.W.S. (3d) 419. [8] This responsibility extends to ensuring that PRRA submissions are updated as necessary: Jane Doe v.

Canada (Minister ofCitizenship and Immigration), 2010 FC 285, [2010] F.C.J. No. 323 (QL) at para. 19. [9] An exception to this principle arises where there have been significant changes in the conditions within a country, and anofficer intends to rely on documents from public sources which only became available after the filing of an applicant’s PRRAapplication. Where these documents are “novel and significant”, fairness may require the officer to disclose the documents to anapplicant and to provide the applicant with an opportunity to respond: Mancia v.

Canada (Minister of Citizenship and Immigration), (FCA), [1998] 3 F.C. 461, 161 D.L.R. (4th) 488 (F.C.A.), at para. 27(b). [10] The applicants say that this is just such a case, given the substantial changes that have occurred within Sri Lanka as a result ofthe end of the civil war in that country. In support of this contention, the applicants cite several cases where the Mancia exception hasbeen found to apply, including Pathmanathan v. Canada (Minister of Citizenship and Immigration), 2009 FC 885, [2010] 3 F.C.R. 395at para. 34, Mahendran v.

Canada (Minister of Citizenship and Immigration), 2009 FC 1236, 86 Imm. L.R. (3d) 30, and Gunaratnam v.Canada (Minister of Citizenship and Immigration), 2011 FC 122, 96 Imm. L.R. (3d) 306 at para. 26. [11] In my view, the jurisprudence relied upon by the applicants is distinguishable from the present case. The civil war in SriLanka ended in May of 2009. The PRRA decisions in the cases cited by the applicants were rendered shortly after the war ended.

Incontrast, by the time that the PRRA decision was rendered in this case in May of 2011, documentary evidence with respect to thechanges in conditions in Sri Lanka could no longer be properly characterized as “novel”. [12] There is also nothing in the record before me to suggest that the applicants could have had any legitimate expectation thatthey would be provided with a further opportunity to provide additional submissions in support of their PRRA application prior to adecision being rendered in that regard. [13] The applicants argue that they were not “removal ready” at the time that they applied for their PRRA, submitting that theirremoval was stayed as a result of the approval in principle of their application for permanent residence.

In support of this contention theyrely on

section 233 of the Immigration and Refugee Protection Regulations, SOR/2002-227. According to the applicants, the refusal oftheir application for permanent residence thus triggered a duty on the PRRA Officer to notify them that their PRRA application wasbeing “reopened” or “reactivated”. [14] However, it is clear that the applicants’ reliance on

section 233 of the Regulations is misplaced, as that provision onlyoperates only to stay a removal where there has been an approval in principle of an application for a Humanitarian and Compassionateexemption. [15] Finally, even if the applicants believed that their PRRA application was being put on hold pending a final decision in relationto their application for permanent residence, that application was refused in July of 2010. The applicants made no effort to update theirPRRA application during the ensuing 10 months.

[ 16 ] In these circumstances, I am not persuaded that the applicants were treated unfairly in the PRRA process. As a consequence, the application for judicial review is dismissed. Certification [ 17 ] Neither party has suggested a question for certification, and none arises here. JUDGMENT THIS COURT ORDERS AND ADJUDGES that : 1. This application for judicial review is dismissed; and 2. No serious question of general importance is certified. “Anne Mactavish” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-4493-11 STYLE OF CAUSE: GOWRI VASANTHAKUMAR ET AL v.

THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: January 18, 2012 REASONS FOR JUDGMENT AND JUDGMENT: MACTAVISH J. DATED: January 18, 2011

APPEARANCES : Krassina Kostadinov FOR THE APPLICANTS Leanne Briscoe Sophia Karantonis FOR THE RESPONDENT SOLICITORS OF RECORD : Waldman & Associates Toronto, Ontario FOR THE APPLICANTS Myles J. Kirvan Deputy Attorney General of Canada FOR THE RESPONDENT