Date: 20041123
Docket: IMM-2229-04
Citation: 2004 FC 1646
Toronto, Ontario, November 23rd, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
MOHAN LOKUSIRIYAGE and SANJEEV LOKUSURIYAGE
Applicants
and
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Mohan and Sanjeev Lokusiriyage seek judicial review of the decision of a Pre-Removal Risk Assessment ("PRRA") officer who found on January 29, 2004 that they would not be at risk of persecution, torture, risk to life or a risk of cruel or unusual treatment or punishment should they be required to return to their country of origin, Sri Lanka. For the reasons below, I find no reviewable error in the officer's decision and dismiss the application.
[2] As a preliminary matter, counsel for the respondent seek an order to amend the style of cause to name the Minister of Citizenship and Immigration as respondent and it is so ordered.
[3] The applicants raise an objection to the reception in evidence of the affidavit of a PRRA officer, Carole Benoit, which I will deal with in connection with the first substantive issue below.
[4] Mr Lokusiriyage claims to have been a supporter of the United National Party (UNP) during the 1994 election campaign. As a result, he was targeted by thugs affiliated with the campaign of a People's Alliance Party ("PA") candidate. He kept a low profile thereafter and in 1998 he went to Qatar to work until April 2001. Upon his return to Sri Lanka at that time, he resumed his political activities and was again targeted by political thugs. Mrs. Lokusiriyage claims to have been abducted and sexually assaulted by these thugs in July, 2001 because of her husband's political activities.
[5] Mr and Mrs Lokusiriyage entered Canada in August 2001. Their refugee claim was denied by the Immigration and Refugee Board ("IRB") in August 2002 on credibility grounds.
[6] For the PRRA, in addition to the information before the IRB, Mr. Lokusiriyage submitted an affidavit and letter from his father to corroborate the abduction of his wife and persecution by PA thugs. The affidavit noted that the PA is now affiliated with the UNP and the harassment of the applicant's family in Sri Lanka continues.
[7] The PRRA officer found the father's affidavit to be self-serving and inconsistent with the prior evidence. Accordingly, he gave it little weight. Further, he found that the documentary evidence did not demonstrate that the government instability was a new situation or that there had been significant deterioration of conditions since the applicants' refugee hearing.
ISSUES
[8] 1. Did the officer make inconsistent findings in his assessment of risk?
2. Did the officer ignore or misconstrue evidence?
ANALYSIS
1. Inconsistent Findings
[9] The applicants' argument with respect to inconsistency in the risk assessment is based upon an interpretation of the meaning of check marks in section 5 of the PRRA officer's assessment form. The applicants argue that those check marks constitute findings by the officer that are incompatible with his subsequent narrative statements. Thus, they contend, the officer could not have properly applied sections 96 and 97 of the Immigration and Refugee Protection Act ("IRPA"). This is an error of law: Ward v. Canada,[1993] 2 S.C.R. 689.
[10] Section 5 of the PRRA Notes to File or assessment form is a check list headed "Common Considerations" followed by a sub-heading "Common Considerations Applicable to All Protection Grounds" and then four categories of issues: Nature of the Risk; State Protection; Internal Flight Alternative/Country or countries of nationality or habitual residence; Law of General Application. In each category are statements against which the officer may check "Yes" or "No" in the boxes provided. For example, in the first category, the officer is invited to enter yes or no to the statement "[T]he risk identified by applicant is among those described in sections 96 and 97 of the Immigration and Refugee Protection Act." In this case, the officer had entered "yes" beside that statement.
[11] The respondent argues that these check marks do not represent findings by the officer or concessions that the risks described exist or apply to the applicants but merely record those aspects of the applicants' claim. In support, the respondent submitted the affidavit of officer Benoit who attests that is the purpose of section 5. Officer Benoit is not the officer who decided this PRRA. That officer was on leave and unavailable to submit an affidavit.
[12] The applicants submit that the affidavit from Carol Benoit is inadmissible because it supplements or explains reasons that had already been completed by another officer. The evidence is not personal knowledge or belief related to the decision made by Mr. Ball. The tribunal cannot supplement its reasons because it is functus officio: Chaudhry v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 104 at para. 25.
[13] The respondent argues, and I agree, that the affidavit of Carol Benoit is admissible because it provides only evidence within her personal knowledge related to PRRA officer procedures. It does not attempt to supplement or explain the decision itself. It does not speak to the reasons for decision. Rather, she explains the procedure followed by all PRRA officers when they fill out the reasons for decision form.
[14] Accordingly, I find that the PRRA officer did not make the findings of fact alleged by the applicant, so he did not contradict himself. Having noted the claimed risks, the officer then assessed the risks in his narrative statements in section 6 of the form. Having reviewed those statements, I find that the officer made no reviewable error in applying sections 96 and 97 of IRPA and, accordingly, the applicants can not succeed on this ground.
2. Assessment of the Evidence
[15] The applicants submit that the decision was not supported by the evidence before the officer. The officer misconstrued the evidence in finding that Mr. Lokusiriyage would not face risk because those alleged to have persecuted him had crossed over to the party that he supports. There are still PA supporters who would seek to harm him.
[16] Moreover, the applicants argue that the officer ignored evidence that the thugs continue to threaten Mr Lokusiriyage's family and promised to kill him if he were to return to Sri Lanka: Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 106 at 113-14 (F.C.A.).
[17] The respondent submits that the findings of the officer were reasonably open to him. There was no evidence submitted that Mr. Lokusiriyage was a prominent member of the UNP, such that he would be particularly at risk. In fact, the evidence was that he only participated in UNP activities for six to seven months. There was no documentary or other evidence that former PA members who became UNP members persecuted UNP members. The only evidence of persecution by these people was the affidavit from the applicant's father, and that evidence was given little weight by the officer, as it was open to him to do.
[18] In my view, the applicants have not shown that the decision is not supported by the evidence or that the officer did not consider all of the evidence before him as he is presumed to do: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.); Huang v. Canada (Minister of Employment and Immigration) (1993), 66 F.T.R. 178; Randhawa v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 606.
[19] The officer's findings with respect to country conditions and the relevance of those findings to the applicants situation must be given considerable deference by the court: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; Ahani v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 72; Sashitharan v.Canada (Minister of Citizenship and Immigration), 2004 FC 1021.
[20] In effect, the Court is being asked by the applicants to weigh the evidence differently from the conclusion reached by the officer. I can find nothing patently unreasonable in his findings and accordingly, this application must be dismissed.
[21] As no question of general importance was proposed, none is certified.
ORDER
THIS COURT ORDERS that:
1. The style of cause is amended to substitute Minister of Citizenship and Immigration for Solicitor General of Canada.
2. This application is dismissed.
3. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2229-04
STYLE OF CAUSE: MOHAN LOKUSIRIYAGE and SANJEEV LOKUSURIYAGE
Applicants
and
THE SOLICITOR GENERAL OF CANADA
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 22, 2004
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: NOVEMBER 23, 2004
APPEARANCES BY:
Mr. Waikwa Wanyoike
FOR THE APPLICANTS
Ms. Margherita Braccio
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Waikwa Wanyoike
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20041123
Docket: IMM-2229-04
BETWEEN:
MOHAN LOKUSIRIYAGE and SANJEEV LOKUSURIYAGE
Applicants
and
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
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