Date: 20101019
Docket: IMM-4705-09
Citation: 2010 FC 1015
Ottawa, Ontario, October 19,
2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
MUTHUKAMARA
THIYAGARAJAH
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 for judicial review of the
decision rejecting that applicant’s Pre-Removal Risk Assessment (PRRA)
application. This application was heard with another, Court File IMM-4707-09,
wherein the applicant challenged the decision made by the same officer refusing
his application for permanent resident status based on humanitarian and
compassionate grounds (H&C application).
[2]
I
agree with the submission of the applicant that if his judicial review application
on the PRRA decision is allowed on the basis that the officer failed to address
the risks alleged by the applicant, then his application in IMM-4707-09 which
raised the same risks must also be allowed. This proposition was not
strenuously opposed by the respondent.
[3]
I
have determined that this application must be granted on that basis and
accordingly, it will be ordered that a copy of these reasons be placed in Court
File IMM-4707-09, which is also allowed.
Background
[4]
The applicant
is a citizen of Sri
Lanka. He
has family living in Sri
Lanka,
including his wife, two teenaged sons, his mother and two of his siblings. He has
a brother and a sister residing in Canada.
[5]
Mr.
Thiyagarajah first entered Canada in 1996, following an arrest by the police in Sri Lanka. He made a refugee claim
which was refused in March 1997. He was then removed to the U.S.A. but returned to Canada 90 days
later and re-submitted a claim for refugee status. The applicant’s claim was refused
in January 2000 and leave to review that decision was denied by this Court.
[6]
Mr.
Thiyagarajah then
submitted a PRRA application in June 2009 and a humanitarian and compassionate
application in July 2009. Both of these applications were denied by the same
officer in September 2009.
[7]
The officer
determined that the documents relating to the current country conditions in Sri Lanka appear to indicate a
generalized risk. She further conducted her own research with regard to
country conditions, “using the most recent, reliable and publicly accessible
information available.” In considering the UK Home Office Country of Origin Information
Report from June, 2009 (UK COI Report), the officer determined that “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.” The officer went on
to consider that some Tamil citizens who were displaced because of the conflict
have been “held in large camps where they were barred from leaving until such
time as Sri Lankan authorities were able to interview them and screen them to
identify Tamil combatants.” The detention of these people, as well as the
conditions of these camps, has been criticized by both foreign governments and
human rights groups as being illegal.
[8]
Nevertheless,
the officer noted, based on 2009 BBC News reports, that there has been an
improvement in the security situation and “the recovery process in general.” Amnesty
International has called on the Sri Lankan government to address the human
rights issues with regard to the displaced Tamils. The officer stated that “it
is hoped that the increased scrutiny of the Sri Lankan authorities by the
United Nations, human rights groups and foreign governments will result in a
sustained improvement to the human rights situation in Sri Lanka following
the previous years of conflict.”
[9]
The
officer then concluded that “on 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.”
As a result, the claim did not meet the requirements of s. 96 of the Act. The
officer was also unconvinced that the applicant’s removal from Canada would subject
him personally to a danger of torture, a risk to his life or a risk of cruel
and unusual treatment or punishment. As a result, his claim did not meet the
requirement of s. 97 of the Act.
Issues
[10]
The
issues raised in the written memorandum on this application are the following:
1.
Did
the officer fail to address the risk factors presented by the applicant;
2.
Did
the officer breach the applicant’s right to procedural fairness by providing
inadequate reasons for her decision;
3.
Did
the officer err by failing to consider specific documentary evidence, and/or misunderstanding
or selectively relying on the evidence before her; and
4.
Did
the officer err in considering irrelevant factors in making the decision?
[11]
At
the hearing, counsel focused on the applicant’s principle submissions, namely,
that the officer’s reasons did not accurately reflect what had been submitted
because the officer had inadequately analysed the file and failed to seek out
the more recent UNHCR report on Sri Lanka. I concur with counsel
that these are the two main areas of concern in the decision under review.
Analysis
[12]
The
basis of the PRRA application was stated in the letter accompanying it as
follows:
It is submitted that in the
current country conditions set out in the documentation above, Mr. Thiyagarajah’s PRRA application
should be accepted. If anything, conditions and the government’s respect for
human rights have deteriorated recently. Nothing has been done to curtail the
activities of armed groups who continue to target Tamils for various reasons,
including extortion. It is submitted that his Tamil ethnicity, his originating
from the north and his extended stay in Canada with the resulting risk of
abduction and extortion together with the heightened suspicion and increased
security measures imposed by the government all give rise to both a well
founded fear of persecution on s. 96 of the Act based on the experiences
of those similarly situated, and a risk to life, torture and cruel and unusual
punishment under s. 97.
[13]
There
is no question that the majority of the PRRA submissions dealt with the
situation, at the time the PRRA application was written, of male Tamils from
the north of Sri
Lanka
and the risk to the applicant as a member of that class if he were to return. All
parties as well as the officer acknowledged that the country conditions changed
for that group as a result of the end of the civil war. However, the issue the
applicant raises is that the officer fails to deal with all of the allegations
set out above, specifically, the allegation that the applicant faces risk as a
result of “his
extended stay in Canada with the resulting risk
of abduction and extortion.”
[14]
It
is not disputed that the officer did not address this concern at all. However,
the respondent submits that there was no need for the officer to address this
as the applicant had failed to provide evidence of personalized risk of this
nature.
[15]
I
cannot accept the respondent’s submission. It may well be that the officer could
conclude, based on the material filed, that the applicant had failed to
demonstrate any personalized risk of the sort alleged. However, that
determination is one the officer must make; it is not for counsel or this Court
to determine that fact. What the officer failed to do in this case was to turn
her mind to some of the risks raised by the applicant, whether supported or not
in the evidence filed in the submissions. It is noteworthy that the officer
fails to state anywhere in her decision the basis on which the applicant made
his PRRA submission. Perhaps if she had done so she would have addressed all
of the risks identified.
[16]
On
this basis the application must be allowed. It is unnecessary to address the
other issues raised by the applicant.
[17]
Given
the substantial changes in Sri Lanka, before the applicant’s
application is redetermined he should be given an opportunity to submit new
material regarding the risks he alleges he will face if returned to Sri Lanka.
[18]
Neither
party proposed a question for certification and no question is certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This
application is allowed, the decision of the officer dated September 2, 2009, is
set aside and the applicant’s Pre-Removal Risk Assessment application is
remitted to another officer for determination after the applicant has been
given an opportunity to make new submissions on his Pre-Removal Risk Assessment
application;
2. No
question is certified; and
3. A
copy of these Reasons for Judgment and Judgment shall be placed on Court File
IMM-4707-09.
“Russel
W. Zinn”
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