Date:
20121017
Docket:
IMM-37-12
Citation:
2012 FC 1196
Ottawa, Ontario,
this 17th day of October 2012
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
NAGENRAM SANTHEESAN,
SUGANTHINI SANTHEESAN,
NIRUSSIA SANTHEESAN
Applicants
and
THE MINISTER OF
CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application
for judicial review of the decision of L. Ly, an immigration officer (the
“officer”), pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “Act”) filed by the applicants. The
officer rejected the applicants’ pre-removal risk assessment (“PRRA”)
application.
[2]
Nagenram
Santheesan (the “principal applicant”), his wife Suganthini Santheesan and
their daughter Nirussia Santheesan (together, “the applicants”) are citizens of
Sri Lanka. The principal applicant arrived in Canada on December 27, 2007,
while his wife and daughter arrived on August 19, 2008.
[3]
The
applicants made a refugee claim which was ultimately rejected by the Refugee
Protection Division of the Immigration and Refugee Board (the “Board”) on
September 20, 2010 and leave for judicial review was also denied on January 10,
2011.
[4]
In
his claim for refugee status, the principal applicant explained that he was
forced to work for the Liberation Tigers of Tamil Eelam (“LTTE”). Due to his
involvement, he was harassed by the Sri Lankan authorities, being believed to
be an LTTE supporter. Due to this harassment, he claimed to have left Sri Lanka for Italy in 1997, where he obtained a work permit. Afterwards, he returned to Sri Lanka to marry his now wife in 2003 and returned to Italy. The principal applicant then
sponsored his wife in order for her to join him in Italy. Their daughter was
born in Italy in 2005. However, the family ultimately left Italy in 2007 when his work permit would no longer be renewed. The principal applicant
claims to have destroyed his renewal notice from the Italian authorities before
leaving Italy. However, he had authorized the Canada Border Services Agency to
inquire and access his immigration file from the Italian government.
[5]
In
its negative decision dated September 20, 2010, the Board held the applicants
were excluded from refugee status by virtue of article 1(E) of the United
Nations Convention Relating to the Status of Refugees (the “Convention”),
having residency status in Italy, based on the documentary evidence,
specifically a “permission of residency” document and a “residency card”. Thus,
the Board concluded the applicants did not have status in Italy based on a work permit, but rather as permanent residents. Thereby, the applicants
have legal rights in Italy and were excluded from claiming refugee protection
in Canada by virtue of article 1(E) of the Convention, which reads:
|
E. This
Convention shall not apply to a person who is recognized by the competent
authorities of the country in which he has taken residence as having the
rights and obligations which are attached to the possession of the
nationality of that country.
|
E. Cette
Convention ne sera pas applicable à une personne considérée par les autorités
compétentes du pays dans lequel cette personne a établi sa résidence comme
ayant les droits et les obligations attachés à la possession de la nationalité
de ce pays.
|
[6]
On
June 9, 2011, the applicants became eligible for a PRRA and their application
was received on June 23, 2011. In their PRRA application, the applicants relied
on the same risks set out in their refugee claim, notably the general country
conditions in Sri Lanka for a Tamil from the northern region of the country.
The principal applicant also disagreed with the Board’s findings with respect
to his status in Italy, asserting that he has no valid legal status.
* * * * * * * *
[7]
The
issues raised by the present application for judicial review can be summarized
as follows:
i.
Did
the officer err in law by relying on the Board’s findings, specifically by
holding that the applicants had status in Italy?
ii.
Did
the officer err in her assessment of the country conditions in Sri Lanka, making factual determinations in a perverse or capricious manner, without regard
to the evidence before her?
[8]
The
first issue raised by the applicants being an alleged error of law is to be
reviewed on a standard of correctness (Raza v. Minister of Citizenship and
Immigration, 2007 FCA 385, 370 N.R. 344 at para 3 [Raza]; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1
S.C.R. 339 at para 44).
[9]
The
second issue, being a question of fact, is to be reviewed based on a standard
of reasonableness, deference being owed to the officer’s findings of fact and
assessment of the evidence due to her specialized expertise (Figurado v.
Canada (Solicitor General), 2005 FC 347, [2005] 4 F.C.R. 387 at para 51 [Figurado];
Ampong v. Minister of Citizenship and Immigration, 2010 FC 35 at para
17; Selliah v. Minister of Citizenship and Immigration, 2004 FC 872, 256
F.T.R. 53 at para 16). Therefore, this Court must determine whether the
officer’s decision falls within the “range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
* * * * * * * *
I.
Did the
officer err in law by relying on the Board’s findings, specifically by holding
that the applicants had status in Italy?
[10]
The
officer did not err in relying on the Board’s finding that the applicants had
legal status in Italy by virtue of article 1(E) of the Convention. While the
applicants allege that it was an error of law for the officer to rely on the
Board’s findings, they provided no authority in support of their argument.
Rather, as explained by the respondent and this Court, a PRRA is not an appeal
from the Board’s decision (Figurado, above at para 52). However, most of
the arguments raised by the applicants challenge the Board’s finding that they
are excluded by virtue of article 1(E) of the Convention, arguments that they
raised in their application for judicial review of the Board’s decision in
IMM-6170-10 and which was ultimately denied. Therefore, the applicants’
argument that the officer erred in relying on the Board’s finding is completely
unfounded.
[11]
It
should be reminded, as explained by Justice Luc J. Martineau in Figurado,
above, at paragraph 52, that “the purpose of the PRRA application is not
to re-argue the facts which were originally before the Board or to do
indirectly what cannot be done directly - i.e. contest the findings
of the Board”. Therefore, the officer was entitled to rely on the Board’s
findings and did not have the obligation to conduct her own analysis as to the
applicability of the exclusion under article 1(E) of the Convention. Moreover,
the applicants provide no authority in support of their argument that an
officer has the obligation to acquire evidence.
[12]
Clearly,
this position is unfounded, as this Court has repeated on numerous occasions
that the burden of proof in a PRRA is on the applicant and that the applicant
has the obligation to provide all of the information in support of his
application.
[13]
For
these reasons, the applicants’ position is unfounded and this Court’s
intervention is unwarranted.
II.
Did the
officer err in her assessment of the country conditions in Sri Lanka, making factual determinations in a perverse or capricious manner, without regard
to the evidence before her?
[14]
Once
again, the applicants have failed to provide any evidence or authority in
support of their position that the officer erred in her assessment of the
country conditions in Sri Lanka. As explained by the respondent, considering
the applicants’ PRRA was based on allegations of risks in Sri Lanka, it was reasonable for the officer to address these risks. Such an officer has the
obligation to consider all new evidence that arose after the determination of
their refugee claim (section 113 of the Act). It was not an error for the
officer to mention Italy, considering the Board held the applicants had status
in Italy and this finding was determinative of their refugee claim.
[15]
The
officer relied on the most recent evidence that was available. Contrary to the
applicants’ allegations, nothing indicates that the officer relied on outdated
evidence. Moreover, much of the documentary evidence relied on by the
applicants in their PRRA application relies on evidence dating back to 2009.
[16]
The
applicants have failed to establish that the officer ignored the evidence that
was before her. Rather, she clearly acknowledged that the situation in Sri Lanka was far from perfect. Essentially, the applicants failed to meet their burden of
proof.
[17]
Having
considered the documentary evidence, the proof of a generalized risk in Sri Lanka, and the absence of a personalized risk, the officer denied the applicants’ PRRA
application. Such a conclusion was reasonably available to her, considering
that the assessment of the evidence, and thereby the assessment of the risks in
Sri Lanka, were within the officer’s expertise.
[18]
Contrary
to the applicants’ reasoning, an officer has no obligation to mention every
document, nor every extract of the documentary evidence on which he or she
relies. While the officer did not necessarily refer to the exact portions of
the 2011 Country Reports identified by the applicants, the officer did not
ignore the evidence of the poor conditions in Sri Lanka, the officer explicitly
acknowledging that the situation is far from perfect. However, what the
applicants are truly seeking is a reweighing of the evidence and the
re-litigation of their failed refugee claim, which was not the function of the
officer, nor is it the function of this Court.
[19]
Furthermore,
while the applicants claim that the officer relied on outdated sources, they do
not indicate which “more recent” sources should have been considered. The
documentary evidence relied on by the officer is dated after the applicants’
PRRA was filed, thereby constituting “new evidence” pursuant to the
requirements of section 113 of the Act (see Raza, above at para 13).
[20]
Therefore,
the officer’s assessment of the evidence and her findings are reasonable,
falling within the range of possible outcomes.
* * * * * * * *
[21]
For
the above-mentioned reasons, the application for judicial review is dismissed.
[22]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for
judicial review of the decision of L. Ly, an immigration officer, in which she
rejected the applicants’ pre-removal risk assessment application, is dismissed.
“Yvon
Pinard”
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