Date: 20100223
Docket: IMM-2401-09
Citation: 2010 FC 203
Ottawa, Ontario, February 23, 2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
SABALINGAM
KUMARASAMY
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 decision of a Visa Officer (Officer) dated March 24, 2009 (Decision), which
refused the Applicant’s application for a permanent resident visa as a member
of the Convention Refugee Abroad class or as a member of the
Humanitarian-Protected Persons Abroad class.
BACKGROUND
[2]
The
Applicant is a Tamil Hindu citizen of Sri Lanka. His parents and four of his siblings are
Canadian citizens. One of his siblings is a citizen of the United States.
[3]
The
Applicant fled Sri
Lanka for
fear of persecution. He was approached by the LTTE to work for them. He was
arrested by the LTTE and was released six days later after agreeing to
collaborate with them.
[4]
On
his way to Canada the Applicant was abandoned
in Ghana by his smuggler. He
made an application for a permanent resident visa under the Convention Refugee
Abroad Class and as a member of the Humanitarian-Protected Persons Class.
DECISION UNDER REVIEW
[5]
The Officer
determined that the Applicant did not meet the requirements for immigration to
Canada because the Applicant was not a member of any of the prescribed classes.
The Officer also determined that the Applicant was not credible.
[6]
Although
the Officer’s letter provides no basis for her finding of credibility, the
CAIPS notes state that the Officer was “[n]ot satisfied by rationale behind the
reasons why he could not go back, as do not find credible that suddenly after
12 years in the same position without collaborating with the LTTE he was in
danger to get kill if [sic] would refused [sic] to collaborate as
claimed.”
[7]
Furthermore,
the Officer was not satisfied that the difficulties claimed by the Applicant demonstrated
that he had been seriously and personally affected by armed conflict and civil
war in Sri Lanka, or that he had a well-founded fear of persecution.
Accordingly, she concluded that he could repatriate to Sri Lanka without fear of
consequence.
ISSUES
[8]
The
issues on the application can be summarized as follows:
1.
Whether
the Officer applied the wrong test for Convention refugee status;
2.
Whether
the Officer failed to give adequate reasons for rejecting the application;
3.
Whether
the Officer erred in her understanding and consideration of the risks facing
the Applicant and the documentary evidence supporting those risks;
STATUTORY PROVISIONS
[9]
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.
|
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.
|
[10]
The
following provisions of the Immigration and Refugee Protection Regulations,
SOR/2002-227 are also applicable in these proceedings:
|
139. (1) A
permanent resident visa shall be issued to a foreign national in need of
refugee protection, and their accompanying family members, if following an
examination it is established that
…
(e) the foreign national is a
member of one of the classes prescribed by this Division;
…
147. A foreign
national is a member of the country of asylum class if they have been
determined by an officer to be in need of resettlement because
(a) they are outside all of
their countries of nationality and habitual residence; and
(b) they have been, and continue
to be, seriously and personally affected by civil war, armed conflict or
massive violation of human rights in each of those countries.
|
139. (1) Un visa de résident permanent est
délivré à l’étranger qui a besoin de protection et aux membres de sa famille
qui l’accompagnent si, à l’issue d’un contrôle, les éléments suivants sont
établis :
…
e) il fait
partie d’une catégorie établie dans la présente section;
…
147. Appartient
à la catégorie de personnes de pays d’accueil l’étranger considéré par un
agent comme ayant besoin de se réinstaller en raison des circonstances
suivantes :
a) il se
trouve hors de tout pays dont il a la nationalité ou dans lequel il avait sa
résidence habituelle;
b) une guerre civile, un conflit armé ou une violation
massive des droits de la personne dans chacun des pays en cause ont eu et
continuent d’avoir des conséquences graves et personnelles pour lui.
|
STANDARD
OF REVIEW
[11]
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.
[12]
The
issue of whether or not the Officer applied the correct legal test should be reviewed
on a standard of correctness. See Golesorkhi v. Canada (Minister of
Citizenship and Immigration), 2008 FC 511, [2008] F.C.J. No. 637 at
paragraph 8.
[13]
The
determination of whether the Officer failed to give adequate reasons for
rejecting the application is an issue of procedural fairness. Accordingly, it
will be reviewed on a standard of correctness. See Weekes (Litigation
Guardian) v. Canada (Minister of Citizenship and Immigration), 2008 FC
293, 71 Imm. L.R. (3d) 4 at paragraph 17.
[14]
The
consideration of whether the Officer erred in her understanding and
consideration of the risks facing the Applicant and the documentary evidence
supporting these risks is an issue of fact. As such, it will attract a standard
of reasonableness upon review. See Dunsmuir at paragraph 51.
[15]
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.”
ARGUMENTS
The Applicant
Wrong Legal Test
[16]
The
Applicant submits that the Officer erred in applying the wrong legal test for
Convention refugee status. The proper legal test is that of reasonable chance,
or good grounds, that persecution will occur, and not that the Applicant must
establish the probability of persecution to the satisfaction of the Officer.
See Adjei v. Canada (Minister of Employment
and Immigration),
[1989] 2 F.C. 680, [1989] F.C.J. No. 67; Krishnapillai v. Canada (Minister of
Citizenship and Immigration), 2005 FC 244, [2005] F.C.J. No. 302 at
paragraphs 9-10.
[17]
The
onus placed on the Applicant to establish his claim in this instance was
heavier than is legally required. The Applicant contends that the Officer
imposed on him an onus to prove a well-founded fear of persecution, as opposed
to a reasonable chance, or good grounds to believe that he may suffer
persecution. See, for example, Sutharasan v. Canada (Minister of Citizenship
and Immigration),
2007 FC 226, 60 Imm. L.R. (3d) 249.
Adequacy of
Reasons
[18]
The
Officer’s adverse finding of credibility was determinative in the rejection of
his claim. The Officer erred by failing to provide any reason as to why she
found the Applicant was not credible. A finding of credibility must be made in
“clear and unmistakable terms.” See Hilo v. Canada (Minister of
Employment and Immigration)(1991), 130 N.R. 236, 15 Imm. L.R. (2d) 199. In
the case at hand, as in Krishnapillai, the Officer failed to set out
what she found not to be credible; nor was there any analysis of how the
credibility concerns related to the merits of the claim.
[19]
Without
the provision of adequate reasons it is impossible to determine how the Officer
reached her Decision. See, for example, Javed v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1458, 41 Imm. L.R. (3d) 118. In
this case, the Officer did not provide adequate reasons or analysis to show how
she arrived at an adverse finding of credibility.
[20]
The
Applicant contends that the Officer failed to provide him with proper reasons
or adequate notes for her Decision. This resulted in a breach of procedural
fairness.
Inadequate
Consideration of Evidence
[21]
The
Applicant identified his fear of extortion by the LTTE to the Officer in the
context of his family unit. His parents and siblings have all left Sri Lanka. The Officer
failed to properly analyse this risk of extortion which was supported by
documentary evidence.
[22]
In
the Decision, the Officer neglected to mention that the LTTE and other militant
groups extort from Tamils in Sri Lanka. She further failed to
consider the documentary evidence before her which demonstrates the presence of
extortion in Sri
Lanka.
The Federal Court has held that the failure of an Officer to recognize the
possibility of extortion among returnees to Sri Lanka is a reviewable
error. See Narany v. Canada (Minister of
Citizenship and Immigration), 2008 FC 155, [2008] F.C.J. No. 194. Similarly
in this case, the Officer erred in failing to address the possibility of the
Applicant facing extortion upon his return to Sri Lanka.
[23]
Furthermore,
the Officer erred in failing to address the 2006 United Nations High Commissioner
for Refugees (UNHCR) Position on the International Protection Needs of
Asylum-Seekers from Sri Lanka which was submitted by the Applicant in support
of his application. This document was not even listed in the index of documents
identified by the Officer. The Applicant cites Sinnasamy v. Canada (Minister of
Citizenship and Immigration), 2008 FC 67, 68 Imm. L.R. (3d) 246 which described
this same UNHCR document as “a most credible source, and the leading refugee
agency in the world. As so often repeated by this Court, the officer’s burden
of explanation increases with the relevance of the evidence to the disputed
facts.”
[24]
In
a recent case of the Federal Court, Justice Kelen noted that “the UNHCR Report
states that ‘all asylum claims of Tamils from the North or East should be
favourably considered’ and that ‘those individuals who are found to be targeted
by the State, LTTE or other non-state agents’ should be recognized as
refugees.” See Christopher v. Canada (Minister of
Citizenship and Immigration), 2008 FC 964, [2008] F.C.J. No. 1199.
[25]
Indeed,
the Officer erred in concluding that the Applicant would not face risk upon
returning to Sri
Lanka
without considering the relevant evidence and testimony before her that suggested
the opposite conclusions.
The Respondent
The
Framework of the Act
[26]
The Applicant’s
application is distinguishable from an application for Convention refugee
status made in Canada. The Act lists three classes of people that are eligible
to become permanent residents: the family class; the economic class; and the
Convention refugee class. The Regulations then create three subclasses of the
Convention refugee class: Convention refugees abroad; country of asylum class;
and source country class. In order to be accepted under the country of asylum
class, pursuant to section 147 of the Regulations, an applicant must
demonstrate that he “has been and continues to be seriously and personally
affected by a civil war, armed conflict or massive violation of human rights in
his country” (no emphasis in original).
[27]
Subsection
61(1) of the Act places an onus on applicants to answer all questions put to
them truthfully. Where an applicant does not comply, the officer must refuse
the application pursuant to subsection 11(1) of the Act. The statutory
framework of the Act places the burden of proof on the applicant.
Legal
Test Correctly Applied
[28]
The
language “seriously and personally” is a requirement under the country of
asylum class in the Regulations. Contrary to the argument of the Applicant, the
word “establish,” found in the Officer’s letter of decision, does not indicate
that the wrong legal test was applied. Moreover, the Sutharsan decision
is distinguishable since, in that case, no personal interview occurred and no
credibility finding was made. A more reasonable comparison to the case at hand
is the recent case of Besadh v. Canada (Minister of Citizenship and Immigration),
2009 FC 680, [2009] F.C.J. No. 847 in which an officer found that “I am not
satisfied that you are a member of any of the classes prescribed because you
have not satisfied me that you have a well-founded fear of persecution.” No
error was found by the Court on those facts.
[29]
Furthermore,
in the case of Saverimuttu v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 1021, [2002] F.C.J. No. 1329, the
IRB rejected a claim for credibility reasons and determined that the claimant
“has not established that he would encounter the problems he alleges upon his
return to Sri
Lanka.”
In this instance, Justice Blais found no reviewable error since the
determinative issue at hand was whether the test was properly applied.
Reasons Were
Adequate
[30]
The
Applicant has cited much case law which stems from proceedings before the IRB.
However, this is of little assistance where an Officer is making an
administrative decision. See Qarizada v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1310, [2008] F.C.J. No. 1662 at
paragraph 27.
[31]
The
Federal Court of Appeal has held that a risk assessment officer and an administrative
tribunal conducting an adjudicative hearing should not be held to the same
standard in providing reasons. Rather, it is unreasonable to require an
administrative tribunal “to give as detailed reasons for their decisions as may
be expected of an administrative tribunal that renders its decisions after an
adjudicative hearing.” See Ozdemir v. Canada (Minister of
Citizenship and Immigration), 2001 FCA 331, 282 N.R. 394 at paragraph
11.
[32]
In
the case at hand, the Officer’s reasons were sufficient. The Officer noted that
the Applicant read his story from a piece of paper, was evasive with regard to
how he was financing his stay in Ghana, and would not provide the name of his
smuggler. Furthermore, she determined that it was unreasonable that the Applicant
was able to work for twelve years as a Justice of the Peace prior to
encountering trouble. Each of these findings was written in the CAIPS notes.
[33]
The
Officer’s adverse finding of credibility was reasonable on the facts before
her. The inferences drawn by the Officer were not so unreasonable as to require
judicial intervention. See, for example, Aguebor v. Canada (Minister of
Employment and Immigration), 160 N.R. 315, [1993] F.C.J. No. 732 at paragraph
4.
Claim
Properly Considered
[34]
The
Officer reasonably determined that the Applicant’s failure to provide credible evidence
was fatal to his claim. Objective evidence of country conditions alone is not
enough for a positive determination of a claim without a link between the
Applicant’s personal situation and the current country conditions in Sri Lanka. The onus
was on the Applicant to demonstrate this link, which he was unable to do.
[35]
Once
the Officer made her determination of a lack of credibility, she did not have a
duty to seek a link between the documentary evidence and the Applicant’s
situation. See, for example, Fernando v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1349, 58 Admin. L.R. (4th)
272. The Federal Court of Appeal has determined that where an applicant is
found to lack credibility, “that determination is sufficient to dispose of the
claim unless there is independent and credible documentary evidence in the
record capable of supporting a positive disposition of the claim.” See Sellan
v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 381, 384 N.R. 163.
[36]
In
granting the application for leave, Justice Simpson noted that “the agent of
persecution was defeated and obliterated by the Sri Lanka army in
May/June 2009.” See Kumarasamy v. Canada (Minister of Citizenship and Immigration)(9
November 2009), Ottawa IMM-2401-09.
[37]
Furthermore,
the possibility of extortion was mentioned in the CAIPS notes. The Officer
acknowledges the Applicant’s allegation of extortion, but notes that he has not
been working and has been living in West Africa. Accordingly, this
allegation was not determinative of the Application.
[38]
The
Officer’s findings and conclusions were reasonably open to her to make. The
Court owes these conclusions deference and should not interfere.
ANALYSIS
[39]
The
Respondent says that at the centre of this Decision lies a general credibility
finding which impacts the other issues raised.
[40]
In
the letter part of the decision, the Officer says very little about why she
does not find the Applicant credible:
After carefully assessing all factors
relative to your application, I am not satisfied that you are a member of any
of the classes prescribed because based on the evidence before me, I find on
balance that you are not credible. The details you provided me and the
difficulties you say you encountered do not demonstrate that you continue to be
seriously and personally affected by armed conflict and civil war in your
country, neither do they establish that you have a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion. I am of the opinion that you
could repatriate to Sri
Lanka without
fear of consequence. Therefore, you do not meet the requirements of this
paragraph.
[41]
In
this paragraph, the Officer says she finds the Applicant not to be credible,
but she does not say why. It is not clear if she does not believe the details
he provided, or whether she believes the details but does not think they
demonstrate the Applicant would be personally affected.
[42]
If
we turn to the CAIPS notes for clarification on the credibility finding, the
Officer provides the following rationale:
Not satisfied by rationale behind the
reasons why he would not go back, as do not find credible that suddenly after
12 years in the very same position without collaborating with the LTTE he was
in danger to get kill (sic) if would refused (sic) to collaborate
as claimed.
[43]
The
Officer seems to be saying that she finds something inherently non-credible or
implausible about the Applicant’s story that he was approached by the LTTE
after a 12-year period as a Justice of the Peace.
[44]
There
is nothing inherently implausible about this at all. Furthermore, the Officer
does not ask the Applicant why it took the LTTE 12 years to approach him and put
him in custody until he promised to collaborate.
[45]
In
other words, if there is a general negative credibility finding here, as alleged
by the Respondent, then it is not based upon any facts. Rather, it is based
upon the Officer’s own speculation about what is plausible in a situation of
which she has no knowledge except for the details provided by the Applicant.
The Officer does not explain why she does not believe that the Applicant was
taken into custody by the LTTE and told to collaborate. All she says is that
the passing of 12 years makes it non-credible. We are not told why a particular
period of time should be the deciding factor in this case.
[46]
A
similar problem arises with regard to the risk of extortion on return raised by
the Applicant. The Officer acknowledges that he has raised this risk but simply
says that she is “not satisfied by rationale behind the reasons why he could
not go back.” Once again, this lack of satisfaction is related to his past
experiences and her reliance upon the 12-year period of time which has passed.
[47]
I
agree with the Applicant that the Officer does not provide him with sufficient
reasons as to why she doubts his credibility or why his fear of extortion can
be discounted. This is an administrative decision and something less in the way
of reasons can be expected than would be required of the Refugee Protection
Officer (see Ozdemir at paragraphs 9-11), but I really do not think
there is any real explanation at all for doubting what the Applicant says about
his past treatment at the hands of the LTTE. Even in an administrative context,
reasons have to be adequate for all of the reasons articulated by the Federal
Court of Appeal. See VIA Rail Canada Inc. v. National Transportation Agency
(C.A.), [2001] 2 F.C. 25, [2000] F.C.J. No. 1685 at paragraphs 16-22.
[48]
I
also agree with the Applicant regarding the issue of the Officer’s
misapplication of the correct test for the burden of proof, but there is no
need to address this matter in detail as the Decision must be returned for reasons
given.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is allowed. The Decision is quashed and returned for
reconsideration by a different Officer.
2.
There
is no question for certification.
“James
Russell”
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