[2012] 3 F.C.R. D-3
Citizenship and Immigration
Status in Canada
Convention Refugees and Persons in Need of Protection
Judicial review of immigration officer’s decision refusing applicants’ application for permanent resident status as members of Convention refugees abroad class, humanitarian-protected persons abroad class—Applicants, Tamil Sri Lankans, surviving recent civil conflict in Sri Lanka—Whether officer should specifically have considered Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 108(4)—Act, s. 108(4) providing that s. 108(1)(e), pertaining to rejection of refugee claims, not applying if person establishing compelling reasons for refusing to avail themselves of protection of country in which person leaving—Federal Court of Appeal previously dealing with former s. 108(4), instructing officer to consider whether evidence establishing “compelling reasons” regardless of whether applicant raising s. 108(4) as issue—Officer obliged to consider whether previous persecutions, torture, treatment or punishment as put in evidence providing compelling reasons not to reject application for refugee protection—Recently, in Alharazim v. Canada (Minister of Citizenship and Immigration), 2010 FC 1044, Federal Court determining that Act, s. 108(4) applying only in truly exceptional or extraordinary circumstances, that exception should be narrowly circumscribed—In present case, officer finding that applicants having general fear if returned to Sri Lanka but would not continue to be seriously, personally affected—Although officer not considering Act, s. 108(4) herein, should have done so—While decision in Alharazim narrowing considerably scope of s. 108(4), difficult to determine when officer must or may not consider s. 108(4)—Therefore, question certified to clarify matter—Application allowed.
Kumarasamy v. Canada (Citizenship and Immigration) (IMM-2010-11, 2012 FC 290, Hughes J., judgment dated March 5, 2012, 8 pp.)