By Sukharam Ramkissoon
A Jamaican citizen who came to Canada as a permanent resident when he was 10 and became involved with the Malvern Crew – a criminal street gang – was successful for the second time in having a negative risk assessment set aside by the Federal Court.
For this article, I will call him Max. In 2004, he was arrested and questioned by police in connection with the murder of a rival gang member. Max agreed to become an informant and pled guilty to a charge of participating in a criminal organization.
He was eventually subpoenaed to testify for the Crown in the high-profile trial of a fellow gang member who was charged with the murder of a rival member. The gang member was convicted in 2011 following a trial in which he gave an eye-witness account of the murder. Max’s participation in the trial was reported by the media, in violation of a court-ordered publication ban.
By reason of the widespread publicity surrounding his testimony, Max claims that if he were returned to Jamaica he would be at risk of harm due to the prevalence of gangs and gang-related violence in that country and to the gangs’ determination to root out informants.
He is most concerned that several other members of the Malvern Crew who know of his role in the murder conviction of a gang member have since been deported from Canada to Jamaica.
Max made a Pre-Removal Risk Assessment (PRRA) application in 2011 after he lost his permanent resident status due to his criminal conviction. His PRRA application was rejected in June 2012. In refusing the application, the PRRA officer “acknowledge(d) Max may face risk of harm from gang members in Jamaica” but determined he had not rebutted the presumption of adequate state protection in that country.
In 2013 a judge of the Federal Court set aside the June 2012 PRRA decision. The court determined that the first PRRA officer had accepted that Max would be at risk from gangs in Jamaica. It was also held that it was unreasonable for the PRRA officer to have looked at state protection generally as opposed to focusing on the ability of Jamaican authorities to protect those who provide police information about gang-related crimes.
In this decision the court specifically provided directions as to the conduct of the re-determination by another officer based on the adequacy of state protection in light of Max’s profile being a former gang member who turned informant.
In August 2013 the second PRRA officer did not carry out the analysis the judge envisioned would occur and instead concluded that he would not face a risk from gang members if he were returned to Jamaica, and in so deciding the second officer did not discuss either the first PRRA decision or the Federal Court decision.
Max again sought judicial review of the second PRRA decision as it was unreasonable.
According to immigration law, officers are tasked with assessing risks that have not been previously assessed. The judge agreed and believed that the decision cannot stand both because the reasoning process undertaken by the second PRRA officer does not withstand scrutiny and because the result reached is unreasonable.
Nowhere in the second negative PRRA decision does the officer address why it was necessary for a second risk assessment to be conducted nor how a different result from that in the first PRRA was reached. The absence of such explanation means that the decision lacks justification, transparency and intelligibility as there is no explanation for how or why a different result was reached on the key issue.
The judge allowed judicial review of the August 2013 PRRA decision and ordered the matter be remitted to another immigration officer for predetermination to do the following:
1. Consider availability of adequate state protection for Max in Jamaica in light of his profile as a former gang member, turned informant, whose testimony led to a murder conviction of a fellow gang member. Such consideration shall involve review of all relevant evidence, including new evidence Max may submit.
2. Not depart from the determination of risk made by the first PRRA officer who examined his case unless there are clear and compelling reasons for doing so, which must be explained in the new PRRA decision. Such reasons may deal with changed circumstances, including the passage of time, that are relevant to the assessment of risk and that have taken place subsequent to June 29, 2012.
Sukhram Ramkissoon is member of ICCRC and specializes in immigration matters at 3089 Bathurst St., Suite 219A, Toronto. Phone 416-789-5756.