Date: 20050520
Docket: IMM-4292-04
Citation: 2005 FC 713
Ottawa, Ontario, May 20, 2005
Present: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
MURALITHARAN NADARAJAH
Applicant
and
THE SOLICITOR GENERAL FOR CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] On April 5, 2004, the Minister's delegate (the ministerial delegate) determined that "there is insufficient evidence based on a balance of probabilities to believe that Mr. Nadarajah would face risk of torture or risk to life or cruel or unusual punishment or treatment as outlined in section 97 of [the Immigration and Refugee Protection Act, S.C. 2001, c. 27] IRPA if returned to Sri Lanka". This is an application for judicial review of that decision.
BACKGROUND
[2] Mr. Nadarajah - also known as "Murali" - was born in Inuvil, Jaffna, Sri Lanka and is a citizen of that country. In 1984, he claims to have been arrested, detained and tortured by the Sri Lankan army for the purpose of obtaining knowledge about the Tamil Tigers (LTTE). He spent approximately two years in various prisons and detention camps during which time he alleges that he was subjected to beatings and torture. When he became ill, he was transferred to a hospital and was subsequently convicted of failing to provide information. He spent a total of 31 months in prison.
[3] He returned to Jaffna, but was forced to move three times and eventually fled to India. He then made his way to Switzerland where he lived for a number of years. In previous proceedings regarding Mr. Nadarajah, it has been determined that, while in Switzerland, he orchestrated fundraising and propaganda activities in support of the LTTE. He left Switzerland after he had been charged, tried and acquitted of being a member of a criminal organization. He moved to France and in 1998, using a false identity, made his way to Canada and claimed refugee status.
[4] The Convention Refugee Determination Division (CRDD), as it was then constituted, rejected his claim. It found that Mr. Nadarajah personally and knowingly participated in crimes committed by the LTTE by raising funds and spreading propaganda. Consequently, he was excluded pursuant to sections F(a) and (c) of Article 1 of the Refugee Convention for participating in crimes against humanity and acts contrary to the purposes and principles of the United Nations.
[5] Subsequently, the Adjudication Division rendered a decision in an inquiry initiated under subsection 27(6) of the now repealed Immigration Act, R.S.C. 1985, c. I-2 regarding paragraphs 27(2)(g) and 27(2)(a) relating to the inadmissibility provision of sub-paragraph 19(1)(f)(iii)(b) of that Act. The Adjudicator concluded that Mr. Nadarajah is a person belonging to an inadmissible class because of his membership in an organization engaged in terrorism. There was no evidence that he satisfied the Minister that his admission would not be detrimental to the national interest.
[6] Mr. Nadarajah submitted an application for a pre-removal risk assessment (PRRA) on November 27, 2002. He claimed to be at risk at the behest of both the Sri Lankan authorities and the LTTE. The former, allegedly, would seek information relating to his high-level activities with the LTTE. The latter, he urged, would kill him for being a traitor. He submitted documents relative to the instability of the political situation in Sri Lanka.
[7] The PRRA officer, who completed the initial assessment, concluded that Mr. Nadarajah had failed to establish that there are substantial grounds to believe that he would be subject to a danger of torture, or to a risk to his life, or to a risk of cruel or unusual treatment. The assessment was disclosed to Mr. Nadarajah and he was invited to comment regarding errors or omissions. He availed himself of that opportunity. The PRRA officer's initial assessment and Mr. Nadarajah's commentary were forwarded to the ministerial delegate.
THE DECISION
[8] The ministerial delegate concluded that Mr. Nadarajah would not be at risk if returned to Sri Lanka. Based on the documentary evidence, and despite isolated violations of the cease fire between the Sri Lankan authorities and the LTTE, the delegate concluded that the situation in Sri Lanka is much improved.
[9] In response to Mr. Nadarajah's allegation that he would be killed by the assassin known as "Shukla", the ministerial delegate stated that if that were so Mr. Nadarajah would have been killed while in Switzerland or during his time in Canada. He had not sought protection in this respect from Canadian police officials during his many years in Canada.
[10] The ministerial delegate found Mr. Nadarajah's allegation of fear of persecution at the hands of the LTTE to be a "spurious" one since he is a high-ranking member of that organization. The controls exercised over the Tamil population in Columbo are not so onerous as to be indicative of disproportionate cruel or unusual punishment. Moreover, the delegate opined, because of Mr. Nadarajah's high profile as a LTTE, it is unlikely that the Sri Lankan police or military would jeopardize the peace process by treating him adversely.
[11] The ministerial delegate relied heavily on a decision from the European Court of Human Rights dated February 17, 2004 (Thampibillai v. The Netherlands, European Court of Human Rights No. 61350/00) wherein the country conditions in Sri Lanka were extensively reviewed. He concluded that "the improving conditions in Sri Lanka may not demonstrate that the entire country is at peace; however, these changes are indicative of an impending durable solution". The violations by both sides "do not demonstrate that the peace process has irrevocably broken down". In the result, Mr. Nadarajah had not demonstrated on a balance of probabilities that he would be at risk. It was therefore not necessary to deal with acts committed or danger posed to the security of Canada.
ISSUES
[12] Much of the argument in the written submissions was devoted to the issue of the appropriate standard of proof under section 97 of IRPA. Since the filing of the memoranda, the Federal Court of Appeal decision in Li v. Canada (Minister of Citizenship and Immigration) (2005), 329 N.R. 346 (F.C.A.), leave to appeal dismissed, [2005] S.C.C.A. No. 119, has been released and has resolved this question. Mr. Nadarajah's counsel abandoned this argument at the hearing. The remaining arguments centred on three discrete allegations of error, specifically, that the ministerial delegate erred:
(a) in concluding that Mr. Nadarajah would not be at risk at the hands of the LTTE;
(b) in breaching procedural fairness by relying on the decision of the European Court of Human Rights without permitting Mr. Nadarajah the opportunity to make submissions with respect to the content of the decision;
(c) in failing to distinguish between the risk pertaining to high-profile LTTE members (as opposed to ordinary members) after concluding that Mr. Nadarajah is a high-profile member of that organization.
THE STANDARD OF REVIEW
[13] Mr. Justice Martineau recently canvassed the question of the applicable standard of review for PRRA determinations in Figurado v. Canada (Solicitor General) 2005 FC 347. He concluded, at paragraph 51, that where the decision is considered "globally and as a whole", the standard of review is reasonableness. However, where a particular finding of fact is made by the PRRA officer, the Court "should not substitute its own decision with that of the PRRA officer unless it is demonstrated by the applicant that such finding was made in a perverse or capricious manner or without regard to the material before the PRRA officer". Mr. Justice Mosley, in Kim v. Canada (Minister of Citizenship and Immigration) 2005 FC 437 concurred with Justice Martineau's analysis and I intend to do likewise. Accordingly, the ministerial delegate's decision, except for factual findings, will be subject to a somewhat probing examination.
ANALYSIS
[14] In my view, the decision, for the reasons that follow, does not withstand the scrutiny of a somewhat probing examination. The defect is fatal and it relates to the ministerial delegate's failure to consider the specific circumstances of Mr. Nadarajah's personal situation and his particular risk as a high-profile member of the LTTE coupled with the fact that this information had been communicated to the Sri Lankan authorities as a result of media coverage. Because the decision is fatally flawed in this respect, I will address the other alleged errors only briefly.
RISK AT THE HANDS OF THE LTTE
[15] The foundation for the ministerial delegate's determination that Mr. Nadarajah need not fear the LTTE is the finding that he is a high-ranking, high-profile LTTE member who came to Canada to organize the LTTE in Canada. Mr. Nadarajah asserts that there are two possible explanations for his presence here. There is, on the one hand, the explanation accepted by the ministerial delegate. On the other hand, there is the explanation that he has fallen out of favour with the LTTE because he was accused of misappropriating funds and of having an inappropriate affair. There is objective evidence, he says, to support the latter theory. It was, according to Mr. Nadarajah, inappropriate for the ministerial delegate to simply choose one reason over the other, without providing an explanation for so doing, particularly when the CRDD afforded little weight to the evidence that supported the explanation accepted by the ministerial delegate.
[16] It strikes me that Mr. Nadarajah bears a heavy burden with respect to this argument. The ministerial delegate made a factual determination in choosing one explanation over the other. The delegate was not bound by the weight that the CRDD accorded to the same evidence. Indeed, the Adjudicator attached significant weight to that evidence. The PRRA officer's assessment, which included a comprehensive analysis of the evidence regarding Mr. Nadarajah's LTTE-related activities in Toronto, was before the ministerial delegate. There was not only ample evidence before the delegate to support this conclusion, there was substantial, material evidence in this respect. Mr. Nadarajah's submission that the "basis for the finding is unknown" is disingenuous.
BREACH OF PROCEDURAL FAIRNESS
[17] Mr. Nadarajah claims that the ministerial delegate breached the duty of fairness by relying on the Thampibillai decision, supra, without giving him an opportunity to respond. He notes that the decision post dates his submissions by a year. Because the case was heavily relied on by the delegate to support the conclusion that there had been significant changes, for the better, in the country conditions in Sri Lanka, Mr. Nadarajah contends that the duty of fairness requires that the document be disclosed to him before, not after, a decision is made.
[18] The standard of review discussed earlier does not apply here because, generally, a breach of procedural fairness will vitiate a decision. Resolution of this issue is governed by the principles articulated in Mancia v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 461 (C.A.). Mr. Justice Décary, at paragraph 51, makes it clear that the mere fact that a document becomes available after the filing of an applicant's submissions by no means signifies that it contains new information, or that such information is relevant information that will affect the decision. It is only where the decision maker "relies on a significant post-submission document that evidences changes in the general country conditions that may affect the decision that the document must be communicated to that applicant".
[19] There is no doubt that the ministerial delegate relied on the Thampibillai decision from the European Court of Human Rights. Nearly one third of the "rationale" portion of the delegate's decision is devoted to a discussion of this authority. The question, though, is whether the content of the decision refers to changes in the general country conditions and whether the decision was "available". In my view, the jurisprudence is a public document and is readily available on line. Although it is dated February 14, 2004 (some nine months after Mr. Nadarajah's submissions of May 10, 2003) the country conditions documents summarized within the decision do not post date Mr. Nadarajah's submissions, with one exception. There is one reference, at paragraph 44 of the decision, to a document that post dates Mr. Nadarajah's submissions by 18 days. The content of that report does not materially or otherwise affect the other referenced country conditions reports.
[20] In sum, the country conditions referred to in Thampibillai, supra, were the same country conditions existing at the time of Mr. Nadarajah's submissions. The one exception does not constitute such a "novel and significant" change, as contemplated in Mancia, supra, that it required disclosure and a further opportunity to Mr. Nadarajah to make submissions on it. There is no breach of procedural fairness.
FAILURE TO ASSESS RISK REGARDING HIGH-PROFILE MEMBERS OF THE LTTE
[21] Mr. Nadarajah contends that the ministerial delegate erred by concluding, on the basis of his status as a high-ranking member of the LTTE, that he does not face increased risk. He points to documents exhibited to his affidavit revealing that various articles have been published about him in the Sri Lankan press. In one, a Sri Lankan security official states that Mr. Nadarajah would be interrogated and detained upon return to Sri Lanka.
[22] I agree with the respondent that articles that were not before the ministerial delegate are not properly before me on judicial review and they will not be considered. That said, there were articles in Mr. Nadarajah's submissions establishing that he was known to the Sri Lankan authorities, articles relating to the Sri Lankan army's treatment of high-profile LTTE members and articles discussing the instability of the peace process.
[23] In Thuraisingam v. Canada (Minister of Citizenship and Immigration) (2004), 251 F.T.R. 282 (F.C.), Madam Justice MacTavish discussed the circumstances of an applicant who was known to the Sri Lankan authorities because of his alleged gang activities in Canada. The RCMP had connected senior members of the gang in question with the LTTE in Sri Lanka. Justice MacTavish concluded that this raised "a prima facie risk to Mr. Thuraisingam from the Sri Lankan autorities". At paragraph 50, she stated:
In assessing the risk to Mr. Thuraisingam if he were returned to Sri Lanka, the
Minister's Delegate examined the general situation facing returning Tamil refugees,
finding that the situation was much improved, and that work was being done to
smooth the way for returning deportees. No consideration was given to the specific
circumstances of Mr. Thuraisingam's own situation, or to the particular risk that he
might face from Sri Lankan authorities.
The matter of the risk assessment was remitted to the ministerial delegate for a new risk assessment.
[24] In Thanabalasingham v. Canada (Minister of Citizenship and Immigration) 2005 FC 172, Mr. Justice Lemieux determined that there existed a fatal flaw in the risk analysis of the Minister's delegate. He noted that his conclusion was identical to that reached by Justice MacTavish. He identified the defect in the risk analysis as one that "relates to the fact that the Minister's delegate did not consider the specific circumstances of the applicant's own situation and to his particular risk arising from the fact that he was alleged to be the leader of a Tamil gang in Toronto, which gang is said to support the LTTE and that this has been communicated to the Sri Lankan authorities as a result of media coverage". The risk assessment was set aside.
[25] The only distinction between the noted authorities and the situation before me is that, undoubtedly, Mr. Nadarajah's profile as a member of the LTTE was found to be significantly higher than that of the applicants referred to by Justices MacTavish and Lemieux. Insofar as the ministerial delegate's flawed decision is concerned, I consider this distinction to be an aggravating, not a mitigating, factor. The error in this matter is further compounded by the ministerial delegate's heavy reliance on the European Court of Human Rights decision. In that case, the Court concluded that it had not been established that the applicant "is known to the authorities as a (suspected) LTTE supporter and that they would therefore have an interest in him" (emphasis is mine).
[26] The ministerial delegate paid lip service to the "many differences in the circumstances between that case and Mr. Nadarajah's case", but did not deal with them. This is particularly troublesome when regard is had to paragraph 48 of the decision where the Court refers to the "Operational Guidance Note on Sri Lanka, issued on 23 July 2003 by the Immigration and Nationality Directorate (Asylum and Appeals Policy Directorate) of the United Kingdom Home Office" and refers to the following excerpt from that report:
The authorities in Sri Lanka will no longer be concerned with those individuals
with past low-level support for the LTTE (e.g. digging trenches, providing food/
shelter to LTTE fighters), those with no police/criminal record or those who may
have been arrested in the past and subsequently released. Those individuals who
may be of continuing interest to the authorities would be... "those wanted in a
relatively serious fashion". This could mean high-profile members of the LTTE
who are still active and influential, and wanted by the authorities.
[27] It is indisputable, in my view, that the profile that the ministerial delegate assigned to Mr. Nadarajah lands squarely within the latter portion of the quoted excerpt. The delegate gave it no consideration. Hence, this is not a situation where the decision maker preferred some documentary evidence over other documentary evidence. If I am wrong in this respect, then the problem lies with the absence of any explanation in this regard.
[28] In short, the ministerial delegate's analysis of risk was not informed by Mr. Nadarajah's personal situation or circumstances. The delegate made a finding that Mr. Nadarajah was a high-ranking, high-profile member of the LTTE and, with the exception of the finding referred to in the next paragraph, left the finding dangling and unconnected to the country conditions reports. For these reasons, the decision does not withstand a probing examination and it can not be sustained. My conclusion would be the same even if I applied, as the respondent suggested, a standard of review of patent unreasonableness.
[29] There is one further finding that merits mention. In the "rationale" portion of the reasons, the ministerial delegate states: "Mr. Nadarajah is a high profile member of the LTTE; it would be difficult to give credence to adverse treatment by the Sri Lankan police or military which would place this peace process in jeopardy". There is nothing in the reasons to indicate any basis for this conclusion nor have I been able to locate any evidentiary basis for it in the record. Absent disclosure regarding the basis of or the rationale underlying this conclusion, I find that it is perverse or capricious.
[30] The application for judicial review will be allowed and the matter will be remitted for reassessment of the risk to Mr. Nadarajah should he be returned to Sri Lanka. Counsel did not suggest a question for certification and I decline to certify a question.
ORDER
THIS COURT ORDERS THAT the application for judicial review is allowed and the matter is remitted for reassessment.
"Carolyn A. Layden-Stevenson"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4292-04
STYLE OF CAUSE: MURALITHARAN NADARAJAH
Applicant
and
THE SOLICITOR GENERAL FOR CANADA
Respondent
DATE OF HEARING: May 12, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: Layden-Stevenson J.
DATED: May 20, 2005
APPEARANCES BY:
Krassina Kostadinov FOR THE APPLICANT
John Loncar FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates
Barristers & Solicitors
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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