Date: 20100901
Docket: IMM-6231-09
Citation 2010 FC 863
Ottawa, Ontario,
September 1, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
SHANDEEP SATHIVADIVEL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant, pursuant to section 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act), asks the Court to set aside a
decision of an officer who rejected his Pre-Removal Risk Assessment (PRRA) application.
[2]
For the
reasons that follow, this application is dismissed.
Background
[3]
The
applicant is a Tamil male from Sri
Lanka. He was born
on April 26, 1985, and was 24 years old when the PRRA officer made her
decision. The applicant’s father owned a grocery store in Vavuniya, Sri Lanka, at which the applicant
worked.
[4]
In May
2002, the Tamil Rehabilitation Organization (TRO) asked the applicant’s father
to help displaced people in Vavuniya and he agreed to do so.
[5]
In June
2003, Sri Lankan soldiers came to the grocery store looking for the applicant’s
father, who had gone to Colombo to purchase goods. The
soldiers accused the father of supporting the Liberation Tigers of Tamil Eelam (LTTE).
When the applicant denied the allegation against his father, he was beaten and
taken to an army camp where he was detained for about five days until his
father reported there and explained the situation.
[6]
In August
2003, some Tamil youths came to the grocery store and accused the applicant and
his father of giving information to the Sri Lankan soldiers. They took the
applicant. In that group was a person known to the applicant’s father, who was
able to talk to the group leader and get the applicant released.
[7]
In
November 2003, some unknown youths came to the grocery store and accused the
applicant and his parents of being LTTE supporters. They denied the
accusation. The group did not believe them and beat the applicant. They
threatened to kill the applicant and his parents. They demanded money and left
on the understanding that they would be back on the collection date. The
father paid 50,000 of the demanded 75,000 Rupees.
[8]
In March
2004, the applicant and his friend were arrested by the Sri Lankan army when
they were returning to Vavuniya from Colombo
with goods for the store. They were accused of taking those goods to the LTTE.
When they denied the allegation, they were beaten, taken to the army camp, and
detained for four days. They were released only after the father went to the
camp and paid a bribe.
[9]
In April
2005, the Tamil militants came to the store and demanded the applicant either
pay them or join them. In July 2005, LTTE militants came to the store and
demanded the applicant join them. His father refused to send the applicant and
he agreed to pay 100,000 Rupees within three months. After they left, the
applicant’s father arranged to send the applicant to Canada.
[10]
The
applicant claims he has been in contact with his father since his arrival in
Canada and that his father has warned him not to return to Sri Lanka as the army had come to the
store and questioned his whereabouts. When told that he was in Canada, the soldiers did not believe
the father and told him that the applicant had joined the LTTE. They told the
father to report to the army camp.
[11]
The
applicant came to Canada through the United States of
America (USA) in October 2005, the same month that the Canada-USA Safe Third
Country Agreement came into effect. The applicant was informed at the port of
entry that he was not eligible to claim refugee status and was sent back to the
USA. In November 2005, he came
back to Canada through Cornwall, Ontario due to the fear that he would
be deported back to Sri Lanka from the USA. He filed a refugee claim, but was found
inadmissible pursuant to subsection 101(1)(c) of the Act.
[12]
He applied
for a PRRA based on his fear that if returned to Sri Lanka he would face persecution,
risk of torture and inhumane treatment and punishment, and risk to his life at
the hands of the Sri Lankan authorities, the paramilitary groups, and the LTTE,
due to his past experiences and his profile as a young Tamil male who had lived
in the north of Sri Lanka. The PRRA was rejected on October 26, 2009, without
an interview.
[13]
The
officer noted the applicant’s history, including the fact that no submissions
had been made to explain why he did not apply for asylum in the several months
he spent in the USA. She stated that as a result
of the extensive nature of the submissions, she would not assess and weigh
individually each piece of evidence; however, she says that she considered “all
evidence that meets the requirements of the IRPA sections.”
[14]
The first
item of evidence she discusses is a letter from Ms. Wu, Refugee Coordinator at
Amnesty International Canada’s Toronto office. The officer noted
that submissions were silent regarding how Ms. Wu came to know of the
applicant’s situation in Sri
Lanka. She stated
that “it is important to note that the PRRA process requires that the risks
faced by an applicant be personalized.” (emphasis added). She found
insufficient evidence in Ms. Wu’s letter to support the assertion that the
applicant is personally at risk in Sri Lanka.
The officer also found that the applicant had not provided “supporting objective
evidence” that he had been previously incarcerated or beaten by Sri Lankan
authorities, LTTE members or others in Sri Lanka or that he will face such treatment upon
his return. She concluded that the letter spoke to general country conditions
and was not linked to the applicant’s personal, forward-looking risks in that
country.
[15]
The
officer next reviewed a copy of a December 2006 report from the UNHCR stating
that no Tamil from the North or East should be returned until there is a
significant improvement in the security situation in Sri Lanka. She then noted that as of May 2009,
the Tamil Tigers had been declared defeated. She noted that UNHCR
recommendations are not binding, and emphasized that the PRRA assessment is
based on the specific circumstances and risks particular to the applicant, who
has “provided insufficient documentation to support that he would personally
be at risk or [sic] harm in Sri
Lanka.”
[16]
The
officer then reviewed the applicant’s affidavit, and in particular what the
applicant stated he had been told by his father. The officer noted than in his
H&C application, the applicant put his family’s address as being in Colombo, not Vavuniya. She also
noted that the applicant’s father does not say when he was visited by members
of the Sri Lankan army or provide details concerning why he was required to
report to an army camp. The applicant did not explain why he continues to be
of interest to the army after an absence of four years. The officer found the
details of the conversation with the father vague, lacking in details, and gave
this evidence low probative value.
[17]
The
officer next addressed a letter from the applicant’s father, dated September
19, 2009. She found the letter to be vague, lacking in details, and written by
someone not disinterested in the outcome of the PRRA assessment. The
applicant’s father did not explain why it is difficult for his family to live
in Vavuniya, the reason, frequency, or dates of the visits by the army or
whether any of those visits were reported to the authorities. Two other
letters from a family member and a friend were also considered, but the officer
found they were not objective documentary evidence supporting the assertion that
the applicant is personally at risk in Sri Lanka.
[18]
The
officer found that the remaining submissions describe the general country
conditions in Sri
Lanka but had
not been linked to the applicant’s personalized forward-looking risk. It was
found that the applicant had not provided objective documentary evidence that
his profile is similar to those who would be at risk. The officer acknowledged
that the applicant’s father recently told him that the army was inquiring as to
his whereabouts, but she found that the objective evidence before her did not support
the assertion that he or his family were being sought or targeted by the
authorities, the army, the LTTE, or others. The officer found it objectively
unreasonable that after four years and the recent positive changes in country
conditions, the government, security forces or the LTTE would be seeking the
applicant. The officer acknowledged that the applicant feared for his safety,
but found that the current situation there was a condition faced by the general
population.
[19]
The
officer then turned to objective documentary evidence to determine whether the
applicant’s Tamil ethnicity or his perceived political opinion as a supporter
of the LTTE would bring him within the definition of a Convention refugee or
person in need of protection.
[20]
She first
reviewed a 2008 U.S. State Department report, followed by a BBC Country Profile
discussing the defeat of the Tamil Tigers. Based on UK Home Office and US
State Department reports, she noted that:
·
A Sri Lankan National Police Commission was set
up in 2002 to oversee police.
·
In 1997, the Human Rights Commission of Sri
Lanka was set up to investigate torture, disappearance, political killings,
etc. It did not have enough staff and resources and did not enjoy the full
cooperation of the government.
·
Evidence suggests that following the
introduction of the Emergency Regulations in 2005, roundups and arrests of
young Tamil males have taken place.
·
Failed asylum seekers who arrive in Colombo
without a National Identity Card are usually able to obtain one on production
of a birth certificate which is easy to obtain.
·
Those who are recent targets of reprisals by the
LTTE have all been high profile activists opposed to the LTTE.
[21]
The
officer noted that it has been determined that a state of civil instability
does not, by itself, give rise to a well-founded fear of persecution for a
Convention reason. She again stated that the applicant had provided
insufficient evidence to support his assertion that he faces a personalized
risk in Sri Lanka over and above the risk faced
by the general population.
[22]
Based on a
total review of the applicant’s submissions and the publicly available
documentation, the officer concluded that there is less than a mere possibility
that the applicant would be subjected to persecution or that he would face a
danger of torture, risk to life, or of cruel and unusual treatment or
punishment. The PRRA application was therefore rejected.
Issues
[23]
The
applicant raises the following three issues in his memorandum of argument:
1.
Did
the PRRA officer err in law by misinterpreting the Convention refugee
definition and by failing to consider that the applicant, as a Tamil male from
the North of Sri Lanka, belonged to a particular social group whose members,
according to the documentary evidence, suffered persecution, and faced a risk
of torture and risk to life in Sri Lanka?
2.
Did
the PRRA officer err in law by ignoring and/or misunderstanding the objective
documentary evidence before her?
3.
Did
the PRRA officer err in law and breach the duty of fairness by failing to
convoke the applicant for a hearing pursuant to s. 113(b) of the Act?
Analysis
1. Personalized Risk
[24]
The
applicant submits that a young Tamil male from the North of Sri Lanka is a
“particular social group” and provides authorities where this Court has so
found. He submits that the PRRA officer erred in law in determining that the
applicant had to show a personalized risk when the Convention refugee definition
clearly recognizes that persons who belong to a particular social group whose
members have been targeted are Convention refugees.
[25]
It is
further submitted that the PRRA officer erred in law in finding that the
applicant’s fear of persecution, risk of torture, and risk to his life was not
objectively well-founded. In this regard he says that the officer failed to
consider that the applicant’s profile as a young Tamil male from the North of
Sri Lanka linked him to the risk faced by similarly situated persons.
[26]
I am not
convinced that the officer misinterpreted the Convention refugee definition.
On page 6 of the her decision, the Officer states:
I now turn to objective
documentary evidence to determine whether the applicant’s Tamil ethnicity or
his perceived political opinion as a supporter of the LTTE, would bring him
within the definition of a Convention refugee or a person in need of
protection, if returned to Sri
Lanka.
[27]
The
Officer then proceeds to an analysis, based on up-to-date sources, of the
situation facing Tamils in post-war Sri Lanka.
Although the Officer does not specifically refer to “a particular social group”
(or the applicant’s status as young, male, and from the North of the country)
it is clear that she turned her mind to the current position of Tamils in Sri Lanka. The applicant cites
jurisprudence from this Court holding that young Tamils from the North of Sri
Lanka constitute a particular social group qualifying for protection; however,
that jurisprudence, as the respondent suggests, is outdated and does not
reflect the current situation in Sri Lanka.
Even the most recent decision cited by the Applicant emphasized “the general
situation of armed conflict and violence in northern Sri Lanka, both at the time he left and
at present”: Kanesaratnasingham v. Canada (Minister of Citizenship and
Immigration),
2008 FC 48, at para. 7 (emphasis added) – a situation which no longer exists.
I prefer the more current decisions cited by the respondent which note the
improving situation in Sri Lanka, even for young Tamil males: Sivabalasuntharampillai v. Canada (Minister of Citizenship and
Immigration and Minister of Public Safety and Emergency Preparedness), IMM-6701-09, January 27, 2010; Sittampalam
v. Canada (Minister
of Citizenship and Immigration), 2010 FC
562; Arumugam v. Canada (Minister of Citizenship and Immigration), IMM-565-10, March 1, 2010.
[28]
Perhaps the
officer could have expressed herself more exactly; however, on a reading of her
decision as a whole it is evident that she was speaking of personalized risk in
the sense described by this Court in Raza v. Canada (Minister of Citizenship
and Immigration), 2006 FC 1385, at para. 29: “Sections 96 and 97 require
the risk to be personalized in that they require the risk to apply to the
specific person making the claim.”
2. Documentary
Evidence
[29]
The
applicant submits that the officer’s assessment of the country conditions in Sri Lanka and his fear of
persecution were unreasonable. He submits that the risk he faced was not a
risk faced by the general population, but a risk faced by a particular group,
i.e. young Tamil males. He says that there was documentary evidence before the
officer which indicated that young Tamils face persecution, torture, and risk
to their lives.
[30]
The
difficulty with this submission is that the documentary evidence that the
applicant relies upon is largely related to the period when the war was
ongoing. Although some evidence was submitted that reflected the situation
after the war ended and that does suggest some Tamil males continue to be at
risk, the officer’s conclusion that this applicant did not face the risks
outlined cannot be said to be unreasonable. None of the evidence, or the
applicant in submissions before the Court, went so far as to say that all young
Tamil males from the North continue to face these risks. The officer found
that this applicant did not face those risks and her assessment falls within
the range of reasonable and possible outcomes based on the record before her.
3. Hearing
[31]
The
applicant points out that since he was found ineligible to make a refugee
claim, he never had an opportunity to present his evidence at a hearing. He
then points to section 167 of the Regulations to the Act which prescribe the
factors for determining whether a PRRA hearing should be held. He relies on Liban
v. Canada (Minister of Citizenship and Immigration), 2008 FC 1252, for the
proposition that where an officer states there is “insufficient objective
evidence”, the officer is really saying that he disbelieves the applicant and
that only if the applicant had presented objective evidence corroborating their
assertions would the officer believe them. The Court in that case concluded
that these were credibility findings and that the officer had erred by failing
to conduct a hearing. Similarly, it is submitted that the PRRA officer’s
findings here are conclusions of credibility and that accordingly an oral
hearing was warranted.
[32]
I do not
agree that the officer breached the duty of fairness to the applicant by
failing to hold a hearing. Based on a reading of the decision as a whole, I am
unable to accept the applicant’s submission that the officer made some sort of
veiled credibility finding. The applicant argues that if accepted, the
evidence of his conversation with his father would have justified allowing the
application. This is a mischaracterization of the officer’s reasoning; the officer
did accept the evidence, and then engaged in a weighing of its probative value.
This is evident from the following passage, among others:
[T]he applicant’s father does not inform
as to when he was visited by members of the Sri Lankan army or details
regarding why he is required to report to an army camp. The applicant does not
explain why he continues to be of interest to the Sri Lankan army after an
absence of nearly four years. … I find the details of this conversation to be
vague, lacking in details and afford it low probative value.
The officer made no negative
conclusion as to the veracity of the evidence; rather, she concluded that the
evidence, at face value, did not support the applicant’s submissions regarding
risk.
[33]
I also do
not accept the submission that the officer’s use of the words “insufficient
objective evidence” amounts to disbelieving the applicant’s evidence, thus
raising the issue of credibility. The PRRA decision itself does not support
this interpretation. The officer writes “I acknowledge that the applicant
states that his father in Sri
Lanka has
recently communicated to him that the army was inquiring as to his whereabouts.”
Again, the officer has balanced the applicant’s evidence against objective
evidence about the current situation in Sri Lanka.
[34]
The
Applicant cites the decision in Liban for the proposition that a finding
of “insufficient objective evidence” really means disbelief in an applicant’s
evidence. I do not agree. In Liban, the officer was evaluating the applicant’s
assertion that he was bisexual; thus a finding of insufficient objective
evidence really did mean that he did not believe the applicant. Here, the officer
weighed both the applicant’s evidence and objective evidence about the current
situation in Sri
Lanka; the officer
did not appear to disbelieve the applicant’s subjective evidence – she merely
accorded it less weight. I find that credibility was not the issue here.
[35]
Neither
party proposed a question for certification. On these facts, no question is
appropriate to be certified.
JUDGMENT
1. This
application for judicial review is dismissed; and
2. No
question is certified.
“Russel W. Zinn”
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