Date: 20100625
Docket: IMM-5379-09
Citation: 2010 FC 699
Ottawa, Ontario, June 25, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
KURANAGE SARATH PERERA
THENNAKOON HALUGE THENNAKOON
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION and THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for
judicial review of a negative pre-removal risk assessment (PRRA) decision. The
officer determined that the additional evidence provided by the applicants did
not overcome the negative credibility finding made by the Refugee Protection
Division of the Immigration and Refugee Board, and that the applicants were not
at risk if returned to Sri Lanka even though the country conditions had
changed.
[2]
For the reasons that follow, this
application is dismissed.
Background
[3]
Kuranage Sarath Perera and
Thennakoon Haluge Thennakoon are citizens of Sri Lanka. They are also
Sinhalese.
[4]
The applicants operated a farm in Sri Lanka where
they employed two Tamil youths who, unbeknown to them, had deserted from the
Liberation Tamil Tiger Ealam (LTTE). The applicants alleged that they faced
persecution from the LTTE for harbouring these two deserters, and from the Sri
Lankan security forces for supporting the LTTE. The applicants fled to Canada and
claimed refugee status.
[5]
The applicants’ refugee hearing
was held on January 10, 2008, where they were represented by counsel. The Board
rejected the applicants’ claim on May 30, 2008. It found that the applicants
lacked credibility, that the events they alleged did not happen, and that the
applicants did not have a well-founded fear of persecution. The Board also
determined that the applicants had no credible basis for their claims, as
defined under section 107(2) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27. Consequently, the Board rejected the applicants’ claim. The
applicants sought leave to judicially review that decision, but their request
for leave was denied by this Court.
[6]
In December 2008, the applicants
submitted their PRRA application. In their application they included various
documents that were not before the Board. These included: (1) a letter, dated
November 5, 2008, from a lawyer in Sri Lanka stating that the applicants were
still being sought by the police, (2) an affidavit of the principle applicant
dated December 4, 2008, attesting that his brother had been shot at on August
22, 2008 when he went to take care of the principal applicant’s property, by people
he swears were looking for him; (3) a Diagnostic Ticket from Negonbo Base
Hospital dated August 26, 2008, relating to his brother’s gun shot wound; (4)
an extract from the Police Report of his brother’s shooting, dated November 10,
2008, (5) a summons issued to the principal applicant to appear as a witness,
dated May 14, 2008, and (6) a Notice for the Appearance of the principal
applicant to supply information regarding a special investigation, dated
September 25, 2008.
[7]
On September 15, 2009, the officer
rejected the applicants’ PRRA application.
[8]
The officer reviewed the decision
of the Board. The officer noted that the determinative issue there was
credibility and that this Court had refused a request for leave to judicially
review the decision.
[9]
The officer considered the
evidence submitted by the applicants and whether it constituted “new evidence”
pursuant to s. 113(a) of the Act. The officer cited Kaybaki v. Canada
(Minister of Citizenship and Immigration), 2004 FC 32, for the proposition that a PRRA
application is not to become a second refugee claim. The officer noted that
the new evidence submitted all post-dated the refugee hearing date; however,
the officer concluded that it did not constitute new evidence, stating: “I
have however, reviewed this documentation and find that they [sic] do
not provide any new information.”
[10]
Despite this finding the officer went
on to consider the additional evidence submitted by the applicants.
[11]
The officer cited Raza v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1385, for the
proposition that the question is not whether the information post-dates the
refugee hearing but whether it provides anything of substance that materially
changes the determination made by the Board.
[12]
The officer held that items (1)
and (2) referred to “incidents [that] are not new evidence applicable to the
particular circumstances of the applicants but, rather, it updates the evidence
that was already presented and considered by the RPD.” Additionally, the
officer held that “these documents do not overcome the credibility concerns of
the Board.”
[13]
The officer held that items (3)
and (4), information detailing the fact that the principal applicant’s brother
was shot, did not contain any information on the reason why he was shot that would
support a finding that the applicants were at risk.
[14]
The officer held that items (5)
and (6), the principal applicant’s court summons and the notice to appear
before the anti-terrorism unit, perplexed him as it was unclear how the principal
applicant had promised to appear before the court in Sri Lanka given
that he was in Canada. The officer may have been in error in the timing of
these events. The officer noted that the police notice to appear did not indicate
that the principal applicant was accused of any wrongdoing. The officer
assigned both documents no weight and determined that they did not “overcome
the serious credibility findings of the Board.”
[15]
The officer considered the
documentation package submitted by the applicants on the country conditions in Sri Lanka. The
officer acknowledged “that the Sri Lankan government has many challenges before
it following the end of the civil war.” However, the officer stated that there
was “insufficient objective evidence before me that the government of Sri Lanka is
subjecting its citizens to a sustained and systemic denial of their core human
rights.”
[16]
The officer found that “the
applicants have been outside of Sri Lanka for over 4 years and they have not provided
sufficient objective evidence that they are at risk from either the government
or the LTTE.” The officer determined that the applicants do not face more than
a mere possibility of persecution and that there were no substantial grounds to
believe that they were at risk of torture or at risk to their lives or at risk
of cruel and unusual punishment if returned to Sri Lanka.
[17]
The officer concluded that “the
applicants are not persons who are in need of protection as outlined in
Sections 96 and 97 of the Immigration and Refugee Protection Act
(IRPA).”
Issues
[18]
The issue raised by
the applicants is whether the PRRA officer erred in his determination.
[19]
The
applicants submit that the officer committed a reviewable error in two
respects: (1) by finding that the applicants’ further submissions were not “new
evidence,” and (2) by misapprehending and ignoring evidence.
Analysis
[20]
The
applicants submit that the evidence provided constituted new evidence, that it
post-dated the refugee hearing date, that it was capable of proving the
applicants’ previous allegations of risk, and that it should have been
considered. The applicants contend that the officer failed to consider
evidence that was contrary to the officer’s determinative finding. They submit
that “because the Officer erroneously dismissed the Applicants’ evidence as not
being new, then the Officer failed to accord any and or appropriate weight to
it” and that this “constitutes ignoring of material evidence.” The applicants
contend that the officer failed to consider the documentary evidence and that
he was selective in his consideration of the documentary evidence.
[21]
The
respondents cite Mikhno v. Canada (Minister of Citizenship and Immigration), 2010 FC 385, at para.
25, for the proposition that “a standing Board decision will act as a starting
point from which an applicant may submit evidence of new developments” and that
if the applicants’ new evidence inadequately addresses this starting point a
negative decision is likely. The respondents say that the officer reasonably
concluded that the information provided by the applicants did not provide any
new information. They further say that notwithstanding this conclusion, the
officer then considered the new information, and determined that it did not overcome
the credibility concerns of the Board. They submit that the officer did not
err in his assessment of the new information and that he afforded it
appropriate weight. The respondents contend that the officer’s assessment of
the “new evidence” was reasonable, that he did not ignore evidence, and that he
reasonably concluded that the applicants were not persons in need of
protection.
[22]
The
question of whether the evidence submitted by the applicants was “new
evidence,” within the meaning of s. 113(a) of the Act, is a question of mixed
fact and law reviewable on the reasonableness standard. The question of
whether the officer properly assessed the evidence is a question of fact
reviewable on the reasonableness standard.
[23]
In
my view, the officer did err in finding that the evidence submitted by the
applicants was not “new evidence,” but this error does not constitute a
reviewable error in the circumstances at hand because the officer then went on
to consider this evidence.
[24]
The
officer accepted that the evidence in question arose after the rejection of the
applicants’ refugee claim. In De Silva v. Canada (Minister of
Citizenship and Immigration), 2007 FC 841, at para. 17, Deputy Justice Teitelbaum held that new evidence could include “evidence
relating to old risks.” He also cautioned, at para. 17, that
PRRA officers “must be careful not to mix up the issue of whether evidence is
new evidence under subsection 133(a) [sic] with the issue of whether the
evidence establishes risk.” It is this error that the officer committed in
this case.
[25]
However, the officer’s error is not a reviewable error,
because the officer did not reject the evidence submitted by the applicants
outright. Instead, the officer turned his mind to evaluating this evidence to
determine whether it overcame the findings of the Board and whether it
supported a finding that the applicants were persons in need of protection.
The officer did exactly what the Court of Appeal has instructed PRRA officers
to do in Raza v. Canada
(Minister of Citizenship and Immigration), 2007 FCA 385, at para.
13, where the Court held that “[i]f the evidence is
capable of proving an event that occurred or circumstances that arose after the
RPD hearing, then the evidence must be considered (unless it is rejected because
it is not credible, not relevant, not new or not material).”
[26]
In Mikhno at para. 25, Justice O’Keefe
held that:
… a standing Board decision will act as a
starting point from which an applicant may submit evidence of new developments.
Deficiencies or concerns noted by the Board, if not adequately addressed with
new evidence, leave the reviewing officer little choice but to render a
negative decision.
[27]
In spite of counsel’s able and detailed
submissions, and having read the reasons of the officer with a view to the new
evidence that was tendered, I must conclude that the officer explained with
transparent, intelligible, and sufficient reasons why the applicants’ new
evidence did not overcome the serious negative credibility finding made by the
Board.
[28]
The
decision of the Board and its conclusion with respect to the credibility of the
applicants is quite stark. Counsel for the respondents provided a summary of
the Board’s findings in this regard which was quite instructive. That summary
included the following: 7 findings of implausibility, 6 inconsistencies, and 2
exaggerations. In the face of such findings, the new evidence required to
overcome his lack of credibility would have to be significant. The officer
found that it was not. On the basis of the record before me, that was not an
unreasonable finding. Accordingly, the officer’s finding
with respect to the weight to be given to this new evidence and its relevance is
determinative of the applicants’ past allegations of risk.
[29]
The applicants have failed to explain how the
recent internal turmoil in Sri Lanka
exposes them, as Sinhalese, to a risk based on
either s. 96 or 97 of the Act, if returned. The applicants have not provided
documentary evidence that supports a conclusion that they face risk irrespective
of their previous allegations that were deemed not credible.
[30]
In determining that the recent internal turmoil in Sri
Lanka did not expose the applicants to persecution or
risk if returned, the officer did not selectively consider the documentary
evidence. The officer acknowledged that there were problems in Sri
Lanka, but concluded that these would not pose a
personalized risk to the applicants. I agree with the respondents’ submission that
the officer’s “reasons evidence a carefully, well thought out and balanced
review of the evidence before the PRRA officer and the Applicants have not
demonstrated that there was an error in the officer’s assessment.”
[31]
Neither party
proposed a question for certification. In my view, there is no question on the
facts before the Court that meets the test to be certified.
JUDGMENT
THIS
COURT ORDERS that:
1. This
application for judicial review is dismissed; and
2. No
question is certified.
“Russel W. Zinn”
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