Navaratnam v. Canada (Solicitor General), 2005 FC 3

Date: 20050105

Docket: IMM-260-04

Citation: 2005 FC 3

Ottawa, Ontario, this 5^th day of January, 2005

Present:           THE HONOURABLE MR. JUSTICE O'REILLY

BETWEEN:

                                              SATHEESKUMAR NAVARATNAM

                                                    SHANTHY SATHEESKUMAR

                                                 ABBIMANUE SATHEESKUMAR

                                                    INTHIRA SATHEESKUMAR

                                                                                                                                           Applicants

                                                                           and

                                        THE SOLICITOR GENERAL OF CANADA

                                                                                                                                        Respondent

                                    REASONS FOR JUDGMENT AND JUDGMENT

[1]                Mr. Satheeskumar Navaratnam travelled to Canada from Sri Lanka in 1998. Travelling with him were his wife, Shanthy, and their children, Abbimanue and Inthira. Mr. Navaratnam sought refugee status for himself and his family, but their claims were rejected by the Immigration and Refugee Board in 1999. Subsequently, an immigration officer performed a pre-removal risk assessment (PRRA) and concluded that there was less than a mere possibility that the applicants would be at risk of persecution or other serious mistreatment if they returned to Sri Lanka.

[2]                Mr. Navaratnam argues that the officer made a number of errors in her analysis and asks me to order another officer to reconsider the family's circumstances. However, I can find no basis for overturning the officer's decision and must, therefore, dismiss this application for judicial review.

I. Issues

1.          Did the PRRA officer make an improper finding that the applicants could find safe refuge within Sri Lanka?

2.          Did the officer fail to consider the risk that the applicants would face on their return to Sri Lanka?

3.          Did the officer treat the applicants unfairly by failing to provide them with her draft reasons and an opportunity to respond to them?

II. Analysis

1. Did the PRRA officer make an improper finding that the applicants could find safe refuge within Sri Lanka?

[3]                The applicants maintained that, as members of the Tamil minority, they were at risk of mistreatment by the Liberation Tigers of Tamil Eelam (LTTE). However, the PRRA officer concluded that "Tamils fleeing persecution from the LTTE can generally find safe haven in government controlled areas", and mentioned Colombo, Puttalam District, Matale and the central highlands as examples of safe areas. The applicants said they also feared the Sri Lankan Army, so living in areas controlled by the government was not a solution. Still, the officer concluded that there is little risk to Tamils living in those areas at present because state protection is available.

[4]                Mr. Navaratnam argues that the officer, in effect, concluded that the family had an Internal Flight Alternative (IFA) within Sri Lanka but failed to follow the governing case law on that issue. In particular, he argues that the officer failed to identify a specific location where his family would be safe or consider whether it would be reasonable to expect them to relocate there, as required by Rabbani v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 47 (T.D.) (QL); Arunasalam v. Canada (Minister of Citizenship and Immigration), 2003 FC 885, [2003] F.C.J. No. 1132 (T.D.) (QL), and Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.), [1993] F.C.J. No. 1172 (QL).

[5]                The respondent answers Mr. Navaratnam's arguments by noting that the officer's overall conclusion was that the applicants were not personally at risk anywhere in Sri Lanka. The officer's comments about the safety of living in governmental-controlled areas must be read in the overall context of her reasons. She was merely suggesting that the applicants might be better off in some areas than in others.

[6]                I agree with Mr. Navaratnam that the officer did not comply with the case law on IFAs. However, her reasons indicate that she found that the applicants were simply not at risk in Sri Lanka. True, she mentioned that the LTTE was still responsible for human rights abuses in some areas and, accordingly, stated that "it may not be advisable for the applicants to re-settle in the North or East". But her main conclusion was that, under current conditions, the applicants would not be at risk of persecution. Nor would they be subject to cruel and unusual treatment, torture or a risk to their lives.

[7]                In my view, looking at the officer's reasons as a whole and the general nature of the applicants' allegations, she was not obliged to arrive at definitive conclusions about the locations where the applicants might be safe or the reasonableness of their re-settling there. She was simply observing that some areas might be safer than others. I can find no error on her part.

2. Did the officer fail to consider the risk that the applicants would face on their return to Sri Lanka?

[8]                Mr. Navaratnam argued that the officer failed to give sufficient attention to the risk that the applicants would face on their return to Sri Lanka arising from the fact that they had left illegally using false passports. The Sri Lanka Immigrants and Emigrants Act, No. 20 of 1948 imposes mandatory prison sentences on those who leave the country without valid passports. Mr. Navaratnam relies on case law in which this Court has recognized that this legislation is applied in a discriminatory fashion against Tamils: Balasubramaniyam v. Canada (Minister of Citizenship and Immigration), 2001 FCT 952, [2001] F.C.J. No. 1318 (T.D.) (QL); Raveendram v. Canada (Minister of Citizenship and Immigration), 2003 FCT 49, [2003] F.C.J. No. 116 (T.D.) (QL).

[9]                However, the officer in this case considered recent documentary reports suggesting that the requirements of the Immigrants and Emigrants Act have been eased. Returning asylum seekers do not generally have difficulties or risk prosecution unless they attempt to re-enter Sri Lanka with false documents. In my view, the officer's conclusion that the family was probably not at risk was reasonably based on the evidence before her.

[10]            Mr. Navaratnam made a related argument to the effect that the officer conducted a faulty analysis of the issues arising under s. 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (see Annex). In particular, he suggests that the officer failed to conduct a distinct and objective analysis of the likelihood that the applicants would be in danger of torture or cruel and unusual treatment, or be exposed to a risk to their lives. In my view, the officer conducted an adequate analysis of the conditions in Sri Lanka and specifically referred to each of the grounds under s. 97. I see no basis for Mr. Navaratnam's complaint, nor any failure on the officer's part to respect the approach laid down by Justice Edmond Blanchard in Baouaouni v. Canada (Minister of Citizenship and Immigration), 2003 FC 1211, [2003] F.C.J. No. 1540 (T.D.) (QL):

A claim under section 97 must be evaluated with respect to all the relevant considerations and with a view to the country's human rights record. While the Board must assess the applicant's claim objectively, the analysis must still be individualized . . . The elements required to establish a claim under section 97 differ from those required under section 96 of the Act where a well-founded fear of persecution to a convention ground must be established. Although the evidentiary basis may well be the same for both claims, it is essential that both claims be considered as separate. A claim under section 97 of the Act requires that the Board apply a different test, namely whether a claimant's removal would subject him personally to the dangers and risks stipulated in paragraphs 97(1)(a) and (b) of the Act. (At para. 41.)

3. Did the officer treat the applicants unfairly by failing to provide them with her draft reasons and an opportunity to respond to them?

[11]            Mr. Navaratnam suggests that the officer had a duty to provide him with a draft of her reasons and give him a chance to respond to them. He relies on the case of Soto v. Canada (Minister of Citizenship and Immigration), 2001 FCT 818, [2001] F.C.J. No. 1207 (T.D.) (QL). There, Justice François Lemieux recognized such a duty.

[12]            However, more recent case law suggests that a PRRA officer is not obliged to provide applicants with draft reasons: Majerbi v. Canada (Minister of Citizenship and Immigration), 2002 FCT 878, [2002] F.C.J. No. 1145 (T.D.) (QL); Zolotareva v. Canada (Minister of Citizenship and Immigration), 2003 FC 1274, [2003] F.C.J. No. 1596 (T.D.)(QL). Mr. Navaratnam recognizes the authority of these recent cases but nevertheless suggests that the failure to provide draft reasons is unfair because:

·            the officer's decision may expose PRRA applicants to a risk of harm; and

·            the officer's decision may contradict Canada's obligation not to deport persons who are at risk.

[13]            In addition, Mr. Navaratnam argues that disclosure of draft reasons would have administrative benefits. Applicants would be less inclined to seek stays of removal orders or judicial review of officers' decisions.

[14]            In my view, Mr. Navaratnam's concerns about fairness can be met by way of the remedies currently available to applicants: stays of removal and judicial review. Even if these are, as Mr. Navaratnam suggests, not the most efficient remedies in the circumstances, this is not, in itself, a basis on which to impose a new duty on administrative decision-makers.

[15]            Mr. Navaratnam asked me to certify a question of general importance on this issue. However, given that the law is now settled, I decline to do so.

                                                                   JUDGMENT

THIS COURT'S JUDGMENT IS that:

1.          The application for judicial review is dismissed;

2.          No question of general importance is stated.

                                                                                                                             "James W. O'Reilly"          

                                                                                                                                                   Judge                      

Annex

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-260-04

STYLE OF CAUSE:               NAVARATNAM, SATHEESKUMAR ET AL v. THE SOLICITOR GENERAL OF CANADA

PLACE OF HEARING:                     TORONTO

DATE OF HEARING:                       November 3, 2004

REASONS FOR JUDGMENT

AND JUDGMENT BY:                    THE HONOURABLE MR. JUSTICE O'REILLY

DATED:                                              January 5, 2005

APPEARANCES BY:

Mr. Kumar S. Sriskanda                        FOR THE APPLICANTS

Ms. Allison Phillips                                FOR THE RESPONDENT

SOLICITORS OF RECORD:

KUMAR S. SRISKANDA

Scarborough, Ontario                            FOR THE APPLICANTS

MORRIS ROSENBERG

Deputy Attorney General of Canada

Toronto, Ontario                                   FOR THE RESPONDENT