Date: 20100223
Docket: IMM-2249-09
Citation: 2010 FC 204
Ottawa, Ontario, February 23, 2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
PACKIAM
NAGARATNAM
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72 (1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of the negative decision of the Applicant’s Pre-Removal Risk Assessment (PRRA),
dated March 25, 2009 (Decision), which refused the Applicant’s application to
be deemed a Convention refugee or a person in need of protection under sections
96 and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a 70-year-old citizen of Sri Lanka. She came to Canada in September, 2005 and made a claim for
refugee protection the following month.
[3]
The
Applicant’s claim for refugee protection was rejected by the Refugee Protection
Division (RPD) of the Immigration and Refugee Board on the basis of
credibility. The RPD’s reasons demonstrate that the Applicant’s testimony negatively
affected her credibility. Leave for judicial review of this decision was
denied in April, 2007.
[4]
The
Applicant then filed a PRRA application which was rejected in March, 2009.
DECISION UNDER REVIEW
[5]
The
PRRA Officer (Officer) canvassed the RPD’s finding with regard to credibility,
noting the numerous discrepancies within the Applicant’s evidence and testimony,
including:
a)
Whether
or not she had been threatened at gunpoint;
b)
Her unconvincing
explanation for omitting to mention being held at gunpoint;
c)
Whether
or not the Applicant lived alone in Sri Lanka; and
d)
Whether
the Applicant had in fact been subjected to extortion.
[6]
The
Officer then considered the country conditions in Sri Lanka and found that the
documentation did not rebut the “serious credibility findings of the RPD and do
not present evidence regarding the personalized risk of the Applicant.”
[7]
Furthermore,
the Officer determined that the Applicant’s new evidence did not prove the
existence of new and material elements to her claim. Rather, she felt that the
Applicant’s PRRA application did not provide any new risk development and
simply enumerated the same risks that had already been considered by the RPD.
[8]
Nonetheless,
the Officer undertook a review of the current country conditions of Sri Lanka to determine if there
had been a significant change that could put the Applicant at risk as defined
in sections 96 or 97 of the Act. While the Officer acknowledged a change in
circumstances in Sri
Lanka, she
also noted that “recent events indicate that the government has almost achieved
total control of the country.” Accordingly, she concluded that the changes in
country conditions since the decision of the RPD would not put the Applicant at
risk pursuant to sections 96 or 97.
[9]
The
Officer determined that the Applicant had not discharged her burden of
providing evidence to substantiate the risk declared in her application.
Indeed, the Officer held that “in the case before me, I find that the applicant
has not provided sufficient objective evidence that she is at risk from the
government, the army, the LTTE or other groups operating in Sri Lanka.”
ISSUES
[10]
The
issues on this application can be summarized as follows:
1.
Whether
the Officer erred by making a finding of credibility without convoking an
in-person hearing;
2.
Whether
the Officer erred in assessing the Applicant’s “personalized risk” as per
section 96;
3.
Whether
the Officer erred in making unreasonable factual findings;
4.
Whether
the Officer erred in applying the wrong legal test;
5.
Whether
the Officer erred in conflating the legal tests under sections 96 and 97.
STATUTORY PROVISIONS
[11]
The
following provisions of the Act are applicable in these proceedings:
|
Convention refugee
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the country
of their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
Person in
need of protection
97. (1) A person in need
of protection is a person in Canada whose removal to their country or countries of
nationality or, if they do not have a country of nationality, their country
of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country
and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
…
113. Consideration
of an application for protection shall be as follows:
(a) an applicant whose claim to
refugee protection has been rejected may present only new evidence that arose
after the rejection or was not reasonably available, or that the applicant
could not reasonably have been expected in the circumstances to have
presented, at the time of the rejection;
|
Définition de
« réfugié »
96. A qualité de réfugié au sens de la Convention — le
réfugié — la personne qui, craignant avec raison d’être persécutée du fait de
sa race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
Personne
à protéger
97. (1) A qualité de personne à protéger la personne qui se
trouve au Canada et serait personnellement, par son renvoi vers tout pays
dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel
elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
…
113. Il est disposé de la demande
comme il suit :
a) le demandeur d’asile débouté ne peut
présenter que des éléments de preuve survenus depuis le rejet ou qui
n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il
n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les
ait présentés au moment du rejet;
|
STANDARD
OF REVIEW
[12]
The
Supreme Court of Canada in Dunsmuir
v. New Brunswick,
2008 SCC 9,
[2008] 1 S.C.R. 190 held that a standard of review analysis need not be
conducted in every instance. Instead, where the standard of review applicable
to the particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis.
[13]
Whether
the Officer erred by making a finding of credibility without convoking an
in-person hearing is an issue of procedural fairness. Accordingly, it will be
reviewed on a standard of correctness. See Dunsmuir at paragraphs 126
and 129 and Golesorkhi v. Canada (Minister of Citizenship and Immigration),
2008 FC 511, [2008] F.C.J. No. 637 at paragraph 8.
[14]
The
issue of whether the Officer erred in assessing the Applicant’s “personalized
risk” as per section 96 of the Act is concerned with whether the Officer
applied the legal test to the facts at hand in an appropriate way. This is an
issue of mixed fact and law and is to be reviewed on a standard of
reasonableness. See Dunsmuir at paragraph 164.
[15]
Similarly,
whether the Officer erred in making unreasonable factual findings is an issue of
fact that will attract a standard of reasonableness upon review. See Dunsmuir
at paragraph 51.
[16]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”: Dunsmuir at
paragraph 47. Put another way, the Court should only intervene if the Decision was unreasonable in the
sense that it falls outside the “range of possible, acceptable outcomes which
are defensible in respect of the facts and law.”
[17]
The
final two issues are concerned with whether the Officer erred in applying the
wrong legal test, and whether the Officer erred in conflating the legal tests
under sections 96 and 97. Issues with regard to the legal test applied by the
Officer are to be determined on a standard of correctness. See Golesorkhi at
paragraph 8.
ARGUMENTS
The Applicant
Wrong
Legal Test
[18]
The
Applicant submits that the Officer did not apply the correct legal test in
determining that the Applicant needed to provide “sufficient” evidence in
support of her application. The definition with regard to the legal meaning of
the term “sufficient” as used by the Officer in this case is unclear. The Applicant
submits that the change in terminology made by the Officer with respect to the
legal test affected the Applicant’s ability to fully understand the threshold she
had to meet to prove her case.
[19]
While
the Applicant is aware of the Court’s decision in Ferguson v. Canada (Minister of
Citizenship and Immigration), 2008 FC 903, [2008] F.C.J. No. 1120, the
Applicant submits that it can be distinguished from the case at hand on a
factual basis. In Ferguson, the legal test was not
altered or elevated, as opposed to the case at hand where the Officer’s wording
elevated the legal test to be met by the Applicant.
Interview
[20]
The
Officer further erred in not interviewing the Applicant with regard to the
Officer’s credibility concerns. Instead, the Officer relied on the findings
made by the RPD with regard to the Applicant’s credibility. The Applicant
submits that she should have been interviewed by the Officer in order to allow
the Officer to make her own determination on the Applicant’s credibility.
Erroneous
Factual Findings
[21]
The
Applicant submits that the Officer erred in finding that no significant changes
in country conditions occurred which would put the Applicant at risk, since most,
if not all, of the documentary evidence referred to by the Officer states the
exact opposite. Recent documentary evidence from Sri Lanka demonstrates
that it is agents of the Sri Lankan government who have denied the human rights
of those who are similarly situated to the Applicant. The Applicant points
specifically to page 5 of the Decision which contains a lengthy quotation from
the 2008 U.S. Department of State Country Report on Human Rights Practices for
Sri Lanka explaining the human rights situation in Sri Lanka. This report
clearly does not support the Officer’s finding that the government is not
subjecting members of the Tamil community to human rights violations.
[22]
The
Officer then devotes merely one paragraph to analysis and critical findings. This
analysis is made without any clear evidentiary basis. The Applicant contends
that anyone reading this Decision would have difficulty understanding how, and
upon what basis, the Officer reached her final conclusion. See, for example, Ali
v. Canada (Minister of
Citizenship and Immigration), 2003 FC 982, 31 Imm. L.R. (3d) 4.
[23]
This
same evidence discusses the arbitrary nature of the targeting of Tamils. The
Applicant submits that this means that the Applicant could be targeted by both
state agents as well as the LTTE because of her identity, profile, ethnicity
and social group. As such, the risk in this instance is personalized to the
Applicant.
State
Protection
[24]
Furthermore,
the recent objective documentary evidence shows deterioration in the country
conditions from June 2006, when the Applicant made her refugee claim, to the
time of the PRRA.
[25]
The Applicant submits that the United States Department of State Report
Country Report on Human Rights Practices (DOS Report) from March 2007
demonstrates that the current situation in Sri Lanka “has deteriorated
significantly.” The cease-fire brokered in 2002 is virtually over and civilian
killings are occurring.
[26]
The DOS Report also shows that extortion is occurring in Sri Lanka. As
an elderly woman with children known to be living abroad, the Applicant will
continue to be a target for extortion, or abduction for ransom. The DOS Report
notes that
targeted assassinations have been
particularly frequent in Jaffna and parts of the east, often victimizing
civilians with no connection to the LTTE. Political killings, abductions and
disappearances have also spread to Colombo, where abductions for ransom have
targeted both Tamils and Muslims.
[27]
Moreover, the United Nations High Commissioner for Refugees (UNHCR)
Position on the International Protection Needs of Asylum Seekers from Sri Lanka
states that
In addition to the situation of
widespread insecurity and the impact of the armed conflict in the North and
East, Tamils in and from these regions are at risk of targeted violations of
their human rights from all parties to the armed conflict. Harassment,
intimidation, arrest, detention, torture, abduction and killing at the hands of
government forces, the LTTE and paramilitary or armed groups are frequently
reported to be inflicted on Tamils from the North and East.
[28]
The same documentary evidence states that “Tamils in Colombo are
especially vulnerable to abductions, disappearances and killings.” Given her
identity, profile, and ethnicity, it is clear that the Applicant would be at
risk if returned to Sri Lanka.
Personalized
Risk
[29]
The
Officer also erred by failing to examine the circumstances of individuals who
are similarly situated to the Applicant. Based on the reasoning in Salibian
v. Canada (Minister of
Employment and Immigration), [1990] 3 F.C. 250, [1990] F.C.J. No. 454, the
Applicant submits that there is
[N]o requirement under section 96 of [the
Act] that the Applicant show that his fear of persecution is “personalized” if
he can otherwise demonstrate that it is “felt by a group with which he is
associated, or even, by all citizens on account of a risk of persecution based
on one of the reasons stated in the definition of a Convention refugee.”
Accordingly, the generalized oppression and
harassment of members of the Applicant’s Tamil community may lead to a finding
of personalized risk to the Applicant herself.
Conflated Tests
[30]
The
Officer’s analysis does not contain a separate section 97 assessment of the
PRRA. As compared to the test under section 96, the section 97 test contains
more assessment of objective risk, and the Applicant suggests it “does not
include the ordinary assessment of subjective fear and credibility per se.”
See Balakumar v. Canada Minister of Citizenship
and Immigration), 2008 FC 20, [2008] F.C.J. No. 30.
[31]
A
negative credibility finding under section 96 of the Act is not necessarily
determinative of the section 97 claim. See Bouaouni v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1211, [2003] F.C.J. No. 1540 and Anthonimuthu
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 141, [2005] F.C.J. No. 162.
Further, according to the Court in Bouaouni paragraph 41, “although the
evidentiary basis may well be the same for both claims, it is essential that
both claims be considered as separate.” As pointed out by Justice de Montigny
in Anthonimuthu at paragraph 52, “the only circumstance in which the
Refugee Division may dispense with a separate 97 analysis is when there is
absolutely no evidence that could support a claim that a person is in need of
protection.”
[32]
The
Officer’s conclusion that the Applicant would not face a serious risk to life
in Sri
Lanka
is not adequate to discharge the onus of providing a clear and separate analysis
under section 97.
The Respondent
Consideration
of New Evidence
[33]
The
Officer was correct in using the RPD decision as the starting point for the PRRA
analysis. The RPD decision is considered final with regard to refugee
protection, subject only to the assessment of new evidence or new developments of
risk which arise after the RPD decision.
[34]
A
PRRA is not intended to be a second refugee claim or an appeal of the
previously rejected claim. Accordingly to Justice Snider in Perez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1379, [2006] F.C.J. No. 1733 at
paragraph 5,
The decision of the RPD is to be
considered as final with respect to the issue of protection under s. 96 or s.
97, subject only to the possibility that new evidence demonstrates that the
applicant would be exposed to a new, different or additional risk that could
not have been contemplated at the time of the RPD decision.
[35]
The
Officer was correct to begin her analysis with a review of the RPD decision and
its findings with regard to the Applicant’s credibility. The Officer then noted
that the Applicant had not provided any new risk developments and, as such,
“has not provided sufficient objective evidence that would persuade me to
conclude differently from the decision of the RPD.”
[36]
The
Respondent submits that the Officer’s conclusion was entirely reasonable, given
the negative determination of the RPD and the nature of the new evidence
submitted.
Interview
[37]
The
role of the Officer was not to conduct a de novo credibility assessment
by means of an oral hearing. Rather, the findings of the RPD are only subject
to new evidence and risk developments demonstrated in the PRRA. The country
conditions submitted by the Applicant did not cast doubt on the RPD’s negative
credibility finding. Nothing in this new evidence required the Officer to hold
an interview with the Applicant. In such a case an Officer can properly make a
finding of insufficiency of evidence. See, for example, Ferguson and Parchment
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1140, [2008] F.C.J. No. 1423.
Documentary
Evidence
[38]
After
having determined that there was no basis upon which to interfere with the
RPD’s negative credibility finding, the Officer analyzed the updated country
condition documents. While the Officer noted the changing circumstances in Sri Lanka, she also
noted that the government had almost achieved total control of the country. As
a result, the Applicant was not at risk from the government, its army, the LTTE,
or other groups in Sri Lanka.
[39]
The
Officer’s conclusion was reasonable and based on objective evidence. The
Officer acted reasonably in her role of weighing the evidence before her, and
it is not the Court’s task to reweigh this evidence. See, for example, Augusto
v. Canada (Solicitor
General),
2005 FC 673, [2005] F.C.J. No. 850 at paragraph 9.
Personalized
Risk
[40]
The
Officer was also correct in assessing the Applicant’s “personalized risk.” The
Applicant did not have to show that she was more at risk than others, but
simply that her circumstances could be connected to the risks described in the
documentary evidence. See, for example, Tharmaratnam v. Canada (Minister of Citizenship
and Immigration), 2007 FC 1153, [2007] F.C.J. 1496 at paragraphs 12-15.
[41]
The
assessment and weighing of the evidence is within the expertise of the Officer.
In this instance, the Officer concluded that there was insufficient evidence
that the Applicant faced a risk if returned. This conclusion was reasonable on
the facts.
No Error in
Legal Test
[42]
The
Decision itself makes it clear that the Officer considered the Applicant’s
application under both sections 96 and 97. The Officer examined recent country
condition documents to determine if the Applicant would be subject to persecution
(under section 96) or subjected to torture, a risk to her life, or a risk of
cruel and unusual punishment (under section 97). The Officer refers to both sections
throughout the Decision.
[43]
The
outcome of the Applicant’s application did not depend on a difference between
section 96 and 97. The Officer’s conclusions plainly apply to both sections of
the Act. The Federal Court has determined that in such circumstances, there is
no need for a separate analysis of section 96 and 97. See, for example, Plancher
v. Canada (Minister of
Citizenship and Immigration) 2007 FC 1283, [2007] F.C.J. No. 1654; Soleimanian
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1660, [2004]
F.C.J. No. 2013; and Kugaperumal v. Canada (Minister of
Citizenship and Immigration), 2004 FC 881, [2004] F.C.J. No. 1085.
ANALYSIS
[44]
The
Applicant has raised a number of points in her application (refined to three at
the hearing) all of which I have examined. With regard to credibility and the
need for an interview, I can find nothing in the Decision to suggest that the
Officer imported the RPD’s credibility findings into her analysis of the
objective country conditions. On these facts, Rule 167 was not triggered and
there was no need to convene an interview to deal with a Decision that,
essentially, is concerned with country condition documentation.
[45]
In
my view, the only arguable issue raised by the Applicant is the adequacy of the
Officer’s objective country condition analysis and findings.
[46]
The
Officer acknowledges the Applicant’s profile and the risks she fears:
As an elderly woman with children known
to be living abroad, the applicant fears that she will continue to be targeted
for extortion, or abduction for ransom. She fears she will be subjected to
torture as well as threats to her life or risks of cruel and unusual treatment
or punishment because she is an elderly Jaffna woman with relatives abroad.
[47]
Most
of the Officer’s Decision summarizes the RPD decision and then goes on to quote
from the documentation. Her analysis and conclusions come down to a single
paragraph:
I acknowledge the changing circumstances
in Sri Lanka; however, recent events
indicate that the government has almost achieved total control of the country.
I have no objective evidence before me that the government of Sri Lanka is subjecting Tamil citizens
to a sustained and systemic denial of their core human rights. The burden of
proof rests with the applicant; that is the onus is on the applicant to provide
evidence to substantiate all of the grounds of her application. In the case
before me, I find that the applicant has not provided sufficient objective
evidence that she is at risk from the government, the army, the LTTE or other
groups operating in Sri
Lanka.
[48]
Having
recited passages from various documents that emphasize the abuses faced by
Tamils in Sri Lanka, the Officer’s conclusion that “I have no objective
evidence before me that the government of Sri Lanka is
subjecting Tamil citizens to a sustained and systemic denial of their core
human rights” appears unfounded and inexplicable.
[49]
It
is difficult to know what the Officer means by this conclusion and how it
relates to any analysis of the documentation with the Applicant’s specific
profile in mind. The Officer does not say that the Applicant has failed to
provide objective proof of the extortion and torture risks faced by someone
with her profile, and it is difficult to see how the Officer’s general conclusions
fit the evidence or relate to the case before her. There is evidence in the
documentation concerning abductions and disappearances, and it is not possible
to tell from the Decision what conclusions the Officer would have come to if
she had assessed this evidence against the specific risks stated by the
Applicant and the Applicant’s profile.
[50]
This
is particularly problematic in this case where the IRB dismissed the refugee
claim on the basis of subjective credibility and did not provide an objective analysis
of the country conditions documentation.
[51]
All
in all, and bearing in mind the Applicant’s age and vulnerability, I think this
matter must be sent back for reconsideration. The Decision is unreasonable in
that it is not possible to say there is an evidentiary basis that supports the
Officer’s conclusions and it is not possible to say that the Officer addressed
herself to the specific risks faced by someone with the Applicant’s profile.
See Cepeda-Guitterez v. Canada (Minister of
Citizenship and Immigration), 157 F.T.R. 35, [1998] F.C.J. No. 1425
at paragraphs 15-17.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is allowed. The matter is returned for reconsideration by a
different officer.
2.
There
is no question for certification.
“James Russell”
Judge
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