Date: 20040513
Docket: IMM-4221-04
Citation: 2004 FC 698
Ottawa, Ontario, May 13, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
AUSTYN EHIREME AKPATAKU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Akpataku seeks the stay of a removal order scheduled to be executed tomorrow. The underlying application for leave and for judicial review relates to a Pre-removal Risk Assessment (PRRA) which was served on Mr. Akpataku on April 20, 2004. The application for leave was filed on May 7, that is, two days late.
[2] Mr. Akpataku also seeks an extension of time to file his leave application. Mr. Akpataku's counsel indicated that he had misread a notation on the Direction to Report regarding the date of service, and had understood that the documents had been served on Mr. Akpataku on April 30, whereas they had, in fact, been served on April 20.
[3] An extension of time is a condition precedent to the consideration of Mr. Akpataku's leave application. The principles governing the exercise of discretion with respect to applications for extension of time are set out in Canada (Attorney General) v. Hennelly, [1999] F.C.J. No. 846 (F.C.A.), (1999), 244 N.R. 399. In order to grant an extension of time, an applicant must demonstrate:
1. a continuing intention to pursue his or her application;
2. that the application has some merit;
3. that no prejudice to the respondent arises from the delay; and
4. that a reasonable explanation for the delay exists.
[4] While I am satisfied that the applicant has satisfied the first, third and fourth conditions of the Hennelly test, I am not persuaded that the underlying application has some merit. As a result, the request for a extension of time is denied.
[5] Mr. Akpataku is a Christian. His claim for refugee protection was based upon his alleged fear of his maternal uncle, who was prominent in the Muslim community in Nigeria, and was angry that Mr. Akpataku had not adopted Islam. This claim was rejected by the Refugee Protection Division of the Immigration and Refugee Board. A review of the Board's reasons discloses that the Board rejected most of Mr. Akpataku's testimony as not credible. As a result, the Board found that Mr. Akpataku failed to provide sufficient evidence that he has a well-founded fear of persecution in Nigeria on the basis of religion or membership in a particular social group.
[6] No additional evidence with respect to the issue of risk was provided to the PRRA officer by Mr. Akpataku, and the PRRA was negative. In my view, there is no merit to Mr. Akpataku's contention that the assessment was either perverse or capricious.
[7] Mr. Akpataku further asserts that his return to Nigeria would put his life and personal safety at risk, thereby engaging his section 7 Charter rights. In Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, the Supreme Court of Canada noted that the procedural protections afforded by section 7 of the Charter are only engaged in the removal process if the individual concerned establishes a prima facie case that there may be a risk of torture upon deportation. In my view, Mr. Akpataku has not met this burden.
[8] Mr. Akpataku has produced a recent letter from his sister claiming that their uncle is still angry with Mr. Akpataku. This letter was not before the PRRA officer when the assessment was carried out. Further, in light of the eleventh-hour production of the letter, as well as the close familial relationship between the writer of the letter and its recipient, I am not persuaded that the letter is sufficient to create a prima facie case that Mr. Akpataku may face a risk if he is deported.
[9] Finally, Mr. Akpataku submits that he was denied a fair hearing by the PRRA officer, as he was not provided with a copy of the draft report before it was finalized, nor was he provided with the opportunity to comment on the findings of the PRRA officer. There is some authority for the proposition that such an opportunity should be provided to applicants, at least in the context of risk assessments conducted under the Immigration Act (See Soto v. Minister of Citizenship and Immigration, [2001] F.C.J. No. 1207). However, the weight of authority in this Court is to the effect that a PRRA applicant does not have any right to comment of draft reasons in relation to a risk assessment conducted pursuant to the Immigration and Refugee Protection Act. (See, for example, Zolotareva v. Minister of Citizenship and Immigration, [2003] F.C.J. No. 1596.) As a result, I am satisfied that there is no merit to this aspect of Mr. Akpataka's application.
[10] For these reasons, the application to extend time to file the application for leave and for judicial review of the decision of the PRRA officer is denied.
[11] On the consent of the parties, the style of cause is amended to remove the Minister of Citizenship and Immigration and to add the Solicitor General as the respondent.
ORDER
THIS COURT ORDERS that:
- The application to extend time to file the application for leave and for judicial review of the decision of the PRRA officer is dismissed; and
- The style of cause is amended to remove the Minister of Citizenship and Immigration and to add the Solicitor General as the respondent.
"Anne L. Mactavish"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM- 4221-04
STYLE OF CAUSE: Austyn Ehireme Akpataku v. M.C.I.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 13, 2004
REASONS FOR ORDER AND ORDER: The Honourable Madam Justice Mactavish
DATED: March 13, 2004
APPEARANCES:
Mr. Adetayo G. Akinyemi For the Applicant
Martin Anderson For the Respondent
SOLICITORS OF RECORD:
Mr. Adetayo G. Akinyemi For the Applicant
Toronto, Ontario
Mr. Morris Rosenberg For the Respondent
Deputy Attorney General of Canada