[2011] 2 F.C.R. D-14
Citizenship and Immigration
Exclusion and Removal
Removal of Refugees
Judicial review of decisions by pre-removal risk assessment (PRRA) officer rejecting application for PRRA, denying request to process application for permanent residence from within Canada on humanitarian and compassionate (H&C) grounds—Applicant, member of U.S. Marine Corps, objecting morally, politically to war in Iraq, suffering from post-traumatic stress disorder (PTSD), leaving unit without authorization—Refugee claim in Canada refused—In support of PRRA, H&C application, applicant submitting risk of persecution, cruel, unusual treatment, undue hardship, unfair trial, disproportionate punishment because of opposition to Iraq war if returned to U.S.—Officer finding, inter alia, that likely applicant would only be reprimanded administratively, possibility of persecution under law of general application not evidence that applicant facing persecution under Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 96, 97—Also finding that protective mechanisms, due process available to applicant if prosecuted by military—Principal issue whether applicant at risk of differential prosecution because of public opposition to Iraq war—Officer not addressing issue that applicant’s risk of persecution resulting from prosecution for political opinions, not from manner in which prosecution carried out—Officer failing to appreciate that risk of differential punishment stemming from decision to prosecute or not—Officer’s finding that risks raised by applicant in PRRA application same as those raised before Refugee Protection Division confirming that officer misconstruing nature of risks—Applicant entitled to assessment of new risks, available state protection raised in PRRA application—Officer failing to address risk of harsh treatment resulting from applicant’s high profile case, public speeches—Because risk mischaracterized, officer unable to properly assess that risk—Officer erring by limiting analysis of hardship to risk analysis applicable to PRRA, refugee claim under ss. 96, 97 when deciding H&C application—Officer required to determine whether judicial, non-judicial punishments faced by applicant if returned to the U.S. because of beliefs, as well as hazing, imprisonment while suffering from PTSD amounting to unusual, undeserved or disproportionate hardship—Applications allowed.
Walcott v. Canada (Citizenship and Immigration) (IMM-5527-08, IMM-5528-08, 2011 FC 415, de Montigny J., judgment dated April 5, 2011, 33 pp.)