Date: 20100607
Dockets: IMM-5155-09
IMM-5157-09
Citation: 2010 FC 608
Ottawa, Ontario, June 7, 2010
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
IYENKARAN
ARIYARATNAM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
These
reasons for judgment and judgment relate to two applications by Mr. Ariyaratnam
for judicial review heard consecutively on May 27, 2010.
[2]
The
first application concerns a decision, dated August 20, 2009, of Pre-Removal
Risk Assessment (PRRA) Officer Susan Neufeld, wherein it was concluded that Mr.
Ariyaratnam is not a Convention refugee or a person in need of protection
within the meaning of sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA), respectively.
[3]
The
second application concerns a decision, also dated August 20, 2009, by the same
Officer, wherein she declined to grant Mr. Ariyaratnam’s request for permanent residence from within Canada on
humanitarian and compassionate (“H&C”) grounds.
[4]
With
respect to the PRRA decision, Mr. Ariyaratnam alleges that the Officer erred by
(i) failing to deal with the main risk factors that he identified in his
updated application; (ii) misconstruing the documentation on country conditions
that she reviewed on her own initiative; and (iii) failing to consider a report
dated July 2009 by the United Nations High Commissioner for Refugees, which was
released a few weeks before the Officer’s decision.
[5]
With
respect to the H&C decision, Mr. Ariyaratnam alleges that the Officer erred
by (i) failing to assess whether he would experience unusual and undeserved, or
disproportionate, hardship in Sri Lanka, given that he is a young Tamil male
from the north of that country; and (ii) applying the wrong test in assessing
his H&C application.
[6]
For
the reasons that follow, I have concluded that the Officer erred in both of her
decisions by failing to sufficiently analyze the main risk factors identified
by Mr. Ariyaratnam and to adequately explain why the evidence did not satisfy
her that he would not (i) in the case of the PRRA decision, incur a risk
contemplated by sections 96 or 97 of the IRPA; and (ii) in the case of the
H&C decision, experience a hardship contemplated by section 25 of the IRPA.
I. Background
[7] Mr.
Ariyaratnam is a 28 year old citizen from the north of Sri Lanka. He is of
Tamil ethnicity.
[8] He left
Sri Lanka in December 2000 and arrived in Canada in September 2003, after
staying in India during the intervening period. Shortly after his arrival, he
applied for refugee status. That application was refused in September 2004,
largely on the basis of concerns regarding his identity, nationality and
credibility. He subsequently obtained a passport and other documentation that
satisfactorily identified him to be of Sri Lankan nationality.
[9] In his
submissions made in May 2008 in support of his initial PRRA application, Mr.
Ariyaratnam alleged that he would face risk in the form of harassment and
extortion by the Liberation Tigers of Tamil Eelam (LTTE), and possible
detention by the army and police, should he return to Sri Lanka. In an
updated submission, dated July 22, 2009, he alleged that, despite the defeat of
the LTTE by government forces in May 2009, he feared that he would be detained
and mistreated by government authorities if he were to return to Sri Lanka.
[10]
Before
this Court, Mr. Ariyaratnam’s counsel conceded that Mr. Ariyaratnam no longer
has a significant fear of harassment or extortion by the LTTE.
II. The PRRA Decision
[11]
The
Officer rejected Mr. Ariyaratnam’s PRRA application after finding that (i) the
news articles and country conditions documentation that he submitted “do not
specifically refer to the applicant and would appear to indicate a generalized
risk”; (ii) the evidence that he submitted regarding the arrest and torture of
his cousin and friend did not appear to support his claim regarding his own
likely risk or harm; and (iii) the country documentation that she reviewed on
her own initiative indicated that, while there continue to be problems,
conditions in Sri Lanka have continued to steadily improve, including with
respect to the security situation and the recovery process in general.
III. The H&C Decision
[12]
The
Officer rejected Mr. Ariyaratnam’s H&C application after finding that (i)
the evidence he submitted regarding the arrest and torture of his cousin and
friend was not sufficient to establish that he would likely face hardship if he
were required to return to Sri Lanka; (ii) while far from ideal, conditions
have continued to steadily improve in Sri Lanka, as described above – this
section of the Officer’s decision was virtually identical to the corresponding
section in her PRRA decision; (iii) the nature and closeness of his family and
personal ties in Canada were insufficient to establish that he would likely
face hardship if required to return to Sri Lanka; (iv) he had not provided
sufficient evidence to demonstrate that he had become established in Canada to
the extent that severing his ties here would amount to an unusual and
undeserved, or disproportionate hardship; and (v) there was insufficient
documentation to support a conclusion that he would have difficulties
readjusting to Sri Lankan society and culture.
IV. Issues
[13]
Did
the Officer err in her PRAA decision by:
i.
failing
to deal with the main risk factors identified by Mr. Ariyaratnam;
ii.
misconstruing
the documentation on country conditions that she reviewed on her own initiative;
or
iii.
failing
to consider the UNHCR’s July 2009 report?
[14]
Did
the Officer err in her H&C decision by:
i. failing
to assess whether Mr. Ariyaratnam would experience unusual and undeserved, or
disproportionate, hardship in Sri Lanka as a young Tamil male from the north of
that country; or
ii. applying
the wrong test in assessing his H&C application?
V. Standard of Review
[15]
The standard of
review applicable to the first four issues raised by Mr. Ariyaratnam is reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 53; Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paras. 46 and 47).
[16]
The standard of review applicable to the fifth
issue raised by Mr. Ariyaratnam is correctness (Khosa,
above at para. 44).
VI. Analysis
A.
Did the
Officer err in failing to deal with the main risk factors identified by Mr.
Ariyaratnam?
[17]
I
agree with Mr. Ariyaratnam’s submission that the Officer failed to address his
submission that he would face a risk of being detained and mistreated by
government authorities, if he were to return to Sri Lanka.
[18]
The
Officer assessed conditions in Sri Lanka in two paragraphs of
her decision. In the first of those paragraphs, she briefly addressed the
evidence submitted by Mr. Ariyaratnam. It was here that she made her findings
that (i) the news articles and country condition reports submitted by Mr.
Ariyaratnam “do not specifically refer to Mr. Ariyaratnam and would appear to
indicate a generalized risk”; and (ii) the evidence regarding the arrest and
torture of his cousin and friend “does not appear to support his contention of
risk or harm.”
[19]
In
the following paragraph of her decision, the Officer briefly addressed the
documentation on country conditions that she reviewed on her own initiative. It
was at this point that she made her finding that, while there continue to be
problems, conditions in Sri Lanka have continued to steadily improve, including
with respect to the security situation and the recovery process in general.
[20]
Immediately
following these two paragraphs, the Officer concluded that “[o]n the facts of
this case, the applicant does not face more than a mere possibility of
persecution for any of the Convention grounds in Sri Lanka.” She then
added that she was not persuaded that Mr. Ariyaratnam’s removal to Sri Lanka
would subject him to a risk contemplated by section 97 of the IRPA.
[21]
Nowhere
in her decision did the PRAA Officer ever directly or indirectly address Mr.
Ariyaratnam’s specific claim that he would be subjected to a risk of
mistreatment by authorities in Sri Lanka on the basis of his
personal profile as a young Tamil male from the north of the country.
[22]
This
claim was central to Mr. Ariyaratnam’s PRRA application. Accordingly, in my
view, the Officer’s failure to explain why the evidence was not sufficient to
permit her to conclude that Mr. Ariyaratnam, as a young Tamil male from the
north of the country, would face a risk contemplated by sections 96 or 97 of
the IRPA if returned to Sri Lanka constitutes a
reviewable error. Had she addressed that risk and reached the same conclusion,
her decision may well have been reasonable. However, her failure to do so was
fatal.
B. Did the Officer
err by misconstruing the country conditions documentation?
[23]
The
principal document reviewed by the Officer on her own initiative was the U.K.
Home Office’s publication entitled Country of Origin Information Report -
Sri Lanka, dated June 26, 2009. That report is a compilation of information
from other respected sources.
[24]
The
U.K. Home Office’s country of origin reports are generally accepted to be among
the most objective credible reports regarding country conditions.
[25]
The
Officer observed that, according to the U.K. Country of Origin Report, “since
the end of the war with LTTE rebels in May 2009, while far from ideal,
conditions have continued to steadily improve in Sri Lanka.” She then
noted some of the ongoing difficulties in Sri Lanka that were identified in
some of the reports from June 2009 that were cited in that Country of Origin Report.
[26]
Mr.
Ariyaratnam submits that the Officer misconstrued that report. More
specifically, he submits that it was not reasonably open to the Officer to
conclude that the report, when read in its entirety, supports the view that
conditions have continued to steadily improve in Sri Lanka. He further
submits that it was unreasonable for the Officer not to have cited specific
page references in that report, to permit him to identify the specific passages
that the Officer relied upon in making her observations about the report.
[27]
When asked to identify
specific passages in that report which do not support the Officer’s characterization
of the report, Mr. Ariyaratnam’s counsel was only able to identify three
passages. The first of those passages reported that a pro-LTTE website had
reported on June 4, 2009 that the police had taken 25 Tamil youths into custody
in Colombo and its suburbs and severely interrogated them. The second passage
quoted from the U.S. Department of State Country Report on Human Rights
Practices, 2008, Sri Lanka. That report was dated February 25, 2009, well
before the end of the civil war in May of that year. The third passage quoted
from the same report, and seemed to be addressing “LTTE suspects” and
“civilians suspected of LTTE connections”.
[28]
The
main body of that report provides information that was available prior to June
1, 2009, which was approximately when government forces defeated the LTTE. In
my view, it was not unreasonable for the Officer to have placed little weight
on the information in that part of the report.
[29]
However,
the “Latest News” section of the report contains information on events and
reports accessed during the period June 2, 2009 to June 25, 2009. Based on my
review of the information in that section of the report, I am unable to
conclude that the Officer’s characterization of the information in the report
regarding conditions as at the end of June 2009 was unreasonable.
[30]
Moreover,
I am unable to conclude that the failure of the Officer to specifically quote
particular sections of the report was unreasonable, particularly given that it
was Mr. Ariyaratnam’s
burden to
establish a well founded fear of persecution contemplated by section 96 of the
IRPA, or a risk contemplated by section 97 of the IRPA. The Officer made it
very clear that she was addressing the information post-dating the end of the
civil war with the LTTE. That information was set forth in the “Latest News”
section mentioned above, which was only four pages in length.
C. Did
the Officer err by failing to consider the UNHCR’s July 2009 report?
[31]
Mr.
Ariyaratnam submitted that the Officer had an obligation to consider the
UNHCR’s July 2009 report, which was released a few weeks before the Officer’s
decision. In this regard, he relied upon this Court’s decisions in Sinnasamy
v. Canada (Minister of Citizenship and Immigration), 2008 FC 67 and Christopher
v. Canada (Minister of Citizenship and Immigration), 2008 FC 964. In my
view, those cases are distinguishable.
[32]
In
Sinnasamy, a PRRA Officer relied on a report of the UNHCR dated December
2006 to support a conclusion that the Applicant in that case did not fall
within the profile of Tamils in Colombo who are specifically
targeted. However, that same document contained information which contradicted
that conclusion. My colleague, Justice de Montigny, appropriately questioned
why the Officer did not address this other material in the report and observed
that the Officer had conducted a very selective reading of the document (Sinnasamy,
above at paras. 32-33). He then observed that no explanation was given as to
why the document was disregarded by the Officer in concluding that the Applicant
had an internal flight alternative in Colombo.
[33]
In
Christopher, the PRRA Officer reached a conclusion that was directly
contrary to the information contained in the new evidence that had been
submitted by the Applicant, without addressing that evidence. My colleague,
Justice Kelen, understandably held that this evidence should have been
specifically mentioned and addressed. He then proceeded to address the Applicant’s
claim that the Officer erred by failing to consider a 2006 UNHCR report on the International
Protection Needs of Asylum-Seekers from Sri Lanka. It is not clear from the
decision whether that report had been included in the evidence submitted by the
Applicant in that case. Justice Kelen then observed that “when important new
evidence contradicts the PRRA decision, the Officer should specifically mention
and analyze this evidence.” I do not read this statement as suggesting that
PRRA Officers have a positive obligation to review, on their own initiative,
the most recent reports published by the UNHCR concerning the country they are
reviewing.
[34]
In
my view, requiring PRRA Officers to read the most recent report of the UNHCR or
any other particular document would be inconsistent with the clear direction
that the Supreme Court of Canada has given that “Parliament intended
administrative fact finding to command a high degree of deference” (Khosa,
above at para. 46; see also Dunsmuir, above at paras. 48, 49 and 53).
[35]
Accordingly,
I am unable to conclude that the Officer erred in failing to consider the
UNHCR’s July 2009 report.
[36]
A
second reason why I do not believe that it was unreasonable for the Officer to
have failed to consider that report is that it was issued only a few weeks
before her decision. While PRRA Officers have some obligation to examine the
most recent sources of information in conducting a risk assessment (Hassaballa
v. Canada (Minister of Citizenship and Immigration), 2007 FC 489 at para.
33), this Court has recognized that “it would be unrealistic to expect PRRA Officers
to monitor continuously the conditions in all applicants’ countries of origin
and update their analyses on an ongoing basis” (Pathmanathan v. Canada
(Minister of Citizenship and Immigration), 2005 FC 6 at para. 7).
[37]
It
is important for applicants and their counsel to keep in mind that the applicant
bears the burden of adducing sufficient evidence to establish a well founded
fear of persecution contemplated by section 96 of the IRPA or that he would
suffer a risk contemplated by section 97 of the IRPA, if required to return to
his country of origin. To require a PRRA Officer to research and address
information contained in any particular report would be inconsistent with this
fundamental principle.
[38]
Where
a PRRA Officer is satisfied that the evidence adduced by an applicant includes
reliable, objective and up-to-date information, a PRRA Officer is under no
obligation to research and address in his or her reasons any additional
documentation. Where a PRRA Officer wishes to supplement the documentary evidence
adduced by an applicant with additional information, the PRRA Officer is free
to do so. Where a PRRA Officer has reason to believe that the country
documentation adduced by an applicant may not be reliable, objective or
up-to-date, the Officer’s obligation to examine additional documentation may be
met by consulting one or more generally recognized sources of reliable,
objective information. As to the specific source or sources consulted, the PRRA
Officer is entitled to a high degree of deference (Khosa, above at para.
46).
D.
Did the Officer err by failing to assess whether Mr. Ariyaratnam would
experience unusual and undeserved or disproportionate hardship as a young Tamil
male from the north of Sri Lanka?
[39]
The
part of the H&C decision that addressed whether Mr. Ariyaratnam would face
unusual and undeserved, or disproportionate hardship if required to return to Sri Lanka is highly
similar to the corresponding part of the PRRA decision. As with the PRRA
decision, the Officer failed to address the specific risk identified by Mr.
Ariyaratnam and to explain why she reached her conclusion, given that he is a
young Tamil male from the north of the country.
[40]
At
the hearing before this Court, the Respondent’s counsel conceded that if I
found that the PRRA decision was deficient on this basis, it should follow that
the H&C decision was similarly deficient.
[41]
I
have indeed concluded that the Officer erred in failing to address, in the
H&C decision, the specific risk of hardship identified by Mr. Ariyaratnam
and to explain why she concluded that he would not face unusual and undeserved,
or disproportionate hardship if required to return to Sri Lanka, given that he
is a young Tamil male from the north of the country.
E. Did the Officer apply the
wrong test in assessing the H&C application?
[42]
Mr.
Ariyaratnam submits that the Officer failed to apply the appropriate
hardship-oriented test in assessing his H&C application. In this regard, he
relies on the fact that the essence of the analysis in the Officer’s H&C
decision was incorporated from her PRRA decision.
[43]
I
am unable to agree with this submission. There is nothing wrong with a PRRA Officer
using material from a PRRA decision when writing an H&C decision, so long
as that material is analyzed within a framework that focuses upon whether the Applicant
is likely to face unusual and undeserved, or disproportionate, hardship.
[44]
At
the outset of the H&C decision, the Officer clearly and correctly set out
the appropriate test. She did this under each of the first three headings of
her decision. Indeed, under the second heading, she provided definitions of the
terms “unusual and undeserved hardship” and “disproportionate hardship”. She
also assessed, under separate headings, matters that typically are assessed in
H&C applications but are not addressed in PRRA applications. These matters
included spousal, family or personal ties that might create hardship if severed;
Mr. Ariyaratnam’s degree of establishment in Canada; the fact
that he has no children whose best interests should be considered; and whether
he would have difficulties readjusting to Sri Lankan society and culture.
[45]
Accordingly,
I am unable to conclude that the Officer applied the wrong test in assessing
Mr. Ariyaratnam’s H&C application.
VII. Conclusion
[46]
Mr.
Ariyaratnam’s applications are granted. The decisions dismissing his PRRA and
H&C applications are set aside. Those applications are remitted to another
PRRA Officer for reconsideration in accordance with the law and these
reasons.
[47]
There
is no question for certification.
JUDGMENT
THIS COURT
ORDERS
AND ADJUDGES THAT these applications for judicial review are
granted. The decisions rejecting Mr. Ariyaratnam’s PRRA and H&C
applications, respectively, are set aside. Those applications are remitted to a
different PRRA Officer to determine, according to law and in accordance with
the foregoing reasons, whether Mr. Ariyaratnam (i) is a Convention refugee within
the meaning of s. 96 of the IRPA and/or a person in need of protection within the
meaning of s. 97 of the IRPA; or (ii) entitled to an exemption under section 25
of the IRPA.
“Paul S. Crampton”
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