Date: 20101112
Docket: IMM-1175-10
Citation: 2010 FC 1131
Ottawa, Ontario,
November 12, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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PUVANESWARAN NALLATHAMBY
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Mr. Nallathamby seeks to set aside
the decision of an officer denying his Pre-Removal Risk Assessment (PRRA)
application. For the reasons that follow, his application is dismissed.
[2]
The applicant is a 40
year-old man of Tamil background from Sri
Lanka. He came to Canada on July 26, 1999 and made a claim for refugee protection.
His claim was dismissed by the former Convention Refugee Determination Division
on October 5, 2000, in part because of credibility issues relating to his
identity.
[3]
The applicant
submitted a PRRA application on September 1, 2009, in which he made submissions
and provided documents with respect to his identity. The PRRA submissions
indicated that he fears returning to Sri
Lanka despite the defeat of
the Liberation Tigers of Tamil Eelam. The PPRA application also included a
letter from a psychologist, Dr. Devins, outlining his assessment of the
applicant’s depressed mental state and the psychological risk the applicant
would face if he was to return to Sri
Lanka.
[4]
The officer noted
that because the applicant had not had a refugee determination under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, all of the documentation provided would be considered under
the PRRA risk assessment.
[5]
The officer also noted
that the applicant was not named in any of the reports relating to the
treatment of Tamils in Sri
Lanka and that accordingly
the articles would be considered as relating to general country conditions in Sri Lanka.
[6]
The officer referred
to a UK Home Office Country of Origin Report which indicated that since the end
of the war, conditions in Sri
Lanka, although still far
from ideal, have continued to improve. The officer acknowledged that displaced
Tamils continued to be held in large camps and that conditions in these camps
have been criticized as being illegal. However, the officer noted BBC News
reports indicating that both the United Nations and UK
government had reported an improvement in the security situation and the
recovery process in general.
[7]
The officer also
considered a UK Border Agency Country of Origin Report from August 2009 which
considered the situation facing Tamils in Colombo since the end of the war. The officer observed
that the report considered the security tactics used by the government, and
specifically quoted a passage from the report referring to the treatment of
Tamils returning from abroad at the Colombo airport. The officer also referred to
documentation considering the feasibility of residence in Colombo for Tamils, which noted that Tamils constitute up to 20% of
the capital’s population.
[8]
The officer
specifically addressed the psychological report tendered by the applicant,
reviewed the report’s findings and acknowledged the medical conclusions of the
psychologist. However, the officer noted that the report did not recommend
treatment or therapy other than suggesting professional mental health treatment
and freedom from the threat of deportation. The officer also noted that other
than an interview, no tests or other diagnostic tools were used in the
diagnosis. The officer found that the psychologist’s comments with regard to
the applicant’s risk if returned to Sri
Lanka were speculative and
that no objective basis was provided for the diagnosis.
[9]
The officer noted
that the applicant has been away from Sri Lanka for ten years and that despite
his profile as a Tamil male from northern Sri Lanka, given the change in
country conditions and insufficiency of the evidence presented by the
applicant, the applicant would not face more than a mere risk of persecution
under s. 96 and removal from Canada would not subject the applicant to the
dangers in s. 97 of the Act.
Residential Area
[10]
The
applicant says that the officer erred in ignoring evidence about his
residential area in Sri Lanka. While it was not mentioned by the officer, the fact
that the officer did not specifically state that the applicant’s residential
area falls within a high-security zone is not a sufficient ground for upsetting
the entire decision. I agree with the respondent that the officer very clearly
considered the possibility of the applicant relocating to Colombo and
cited documentary evidence in this regard.
Psychological Report
[11]
The applicant submits that the officer
erred in his assessment of the evidence contained in the psychological report.
[12]
The officer
appears to have given the report little weight for two reasons. First, the officer
observes that “other than an interview, no tests or other diagnostic tools were
reportedly used in this diagnosis.” There was nothing before the officer to
indicate that other diagnostic tools were available or would be of assistance
in coming to a valid diagnosis. Without such evidence the officer cannot
properly assign less weight to the report solely because other tests
were not performed. However, I agree with the respondent that it was open to
the officer to take account of the fact that the report was based solely on
information supplied by the applicant and to attribute little weight to it as a
consequence. A fair reading of the decision as a whole satisfies me that the
officer’s weighing fell in this second scenario and not the first, and it is
clear that the officer’s finding regarding the lack of other diagnostic tools
was only one factor in the weighing of the report.
[13]
Second, the
officer appears to have given the report little weight because the psychologist “has recommended no treatment or therapy
for the applicant to assist the applicant in overcoming his illness other than
suggesting “professional mental health treatment” that was awaiting
confirmation of health coverage and freedom from the threat of deportation.”
It is unclear what other treatment could be recommended and there was certainly
no evidence that the treatment recommended was improper or inappropriate;
however, it is true that it was a very general statement. There was no
evidence before the officer that “professional mental health treatment” would
not be available to the applicant in Sri
Lanka. Furthermore, the
finding that the applicant’s risk of suicide would increase if he were removed
to Sri Lanka was again based solely on the
applicant’s statement to that effect to the psychologist. While I may have
attributed different weight to this evidence, it cannot be said that the weight
assigned to it by the officer was unreasonable.
Weighing
of Evidence
[14]
The applicant also submits that
the officer dismissed relevant documents he submitted because he was not named
in them. These documents were being relied on by the applicant to establish an
objective basis for risk based on country conditions; accordingly, I do not
accept the submission that the officer erred by assigning the documents no more
weight than other country condition evidence.
[15]
Furthermore, I do not
agree with the applicant that the officer disregarded evidence that did not
support the ultimate negative decision. Throughout the decision the officer
referred to evidence of ongoing problems in Sri Lanka.
As the respondent submitted, the officer engaged in a weighing of the evidence
and the weight given to certain pieces of evidence is not a matter with which
this Court should interfere. I accept the respondent’s submission that recent
cases have confirmed the reasonableness of similar decisions addressing recent
developments in Sri Lanka. In addition to Sivabalasuntharampillai v. Canada (Minister of
Citizenship and Immigration) (27
January 2010), IMM-6701-09 (F.C.), Mosley J., and Arumugam v. Canada
(Minister of Citizenship and Immigration) (1 March 2010), IMM-565-10 (F.C.),
Russell J., cited by the applicant, the
Court has come to similar determinations in Sittampalam v. Canada (Minister of Citizenship and Immigration), 2010 FC 562, and Sathivadivel v.
Canada (Minister of Citizenship
and Immigration), 2010
FC 863.
Procedural Fairness
[16]
The applicant submits that the
fact that the officer conducted his own research into country conditions
without notifying him of the research indicating an improvement in country conditions
was a breach of procedural fairness.
[17]
The jurisprudence is clear that
applicants need not be informed of publicly available documentation that became
available after submissions were made to the decision-maker unless the
information is “novel and significant” and evidences changes in the general
country conditions that may affect the decision: Mancia v. Canada (Minister
of Citizenship and Immigration), [1998] 3 F.C. 461 (C.A.), Lima v.
Canada (Minister of Citizenship and Immigration), 2008 FC 222. The
documents the officer examined post-application simply do not meet this test.
Nothing novel and significant was pointed to by the applicant and having
reviewed the documents, I can find nothing that falls within that description.
[18]
Lastly,
the applicant submits that the officer
erred by failing to articulate his or her findings regarding the evidence and by
not acting in a transparent manner. While it would have been preferable for the
officer to set out his or her reasoning in more detail, it is clear that the officer
considered the evidence regarding continuing problems for Tamils in Sri Lanka but
concluded that the situation did not rise to a level warranting protection
under ss. 96 or 97 of the Act. Based on a full review of the decision and the
record, this was not an unreasonable finding given the evidence considered by
the officer.
[19]
For these
reasons the application is dismissed. Neither party proposed a question for
certification.
JUDGMENT
THIS COURT’S JUDGMENT IS
that:
1. This
application is dismissed; and
2. No
question is certified.
“Russel W. Zinn”
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