Date:
20121207
Docket: IMM-2167-12
IMM-2169-12
Citation: 2012 FC 1443
Ottawa, Ontario, December 7, 2012
PRESENT: The Honourable Mr. Justice
Zinn
BETWEEN:
|
|
DEVEKA
RAJANAYAGAM,
SANGEETHA
RAJANAYAGAM, GURUPARAN RAJANAYAGAM, and KARTHTHEEPAN RAJANAYAGAM
(BY HIS
LITIGATION GUARDIAN
DEVEKA
RAJANAYAGAM)
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicants seek to set aside the negative
decision on their application for a Pre-Removal Risk Assessment [PRRA]
(IMM-2167-12) and the negative decision on their application for permanent
residency on humanitarian and compassionate grounds [H&C] (IMM-2169-12).
[2]
The applicants are citizens of Sri Lanka. Ms. Deveka Rajanayagam is the mother of daughter Sangeetha, and sons Guruparan
and Karththeepan, aged 24, 20, and 12, respectively. They arrived in Canada in November 2005 and sought protection as refugees. The Rajanayagams say they are
Tamils from the north of Sri Lanka with imputed links to the Liberation Tigers of Tamil Eelam and that
they will face persecution if returned to Sri Lanka. The Refugee Protection
Division of the Immigration and Refugee Board [RPD] rejected their claims in
January 2007, on the basis of Ms. Rajanayagam’s credibility.
[3]
The applicants then made H&C and PRRA
applications, both of which were rejected in December 2009. The applicants
were scheduled to be removed from Canada on November 30, 2010. They retained
new counsel and submitted fresh PRRA and H&C applications. They were
successful in obtaining a stay of their removal pending the final determination
of these applications.
[4]
Counsel for the applicants submits that the
officer made a considerable number of errors in reaching each decision: four in
the PRRA decision and eight in the H&C. I find that there is one very
strong and determinative reason for granting the judicial review of the H&C
decision and need not therefore address the other seven alleged errors. I find
that none of the alleged errors in the PRRA decision are justified and I will
dismiss that application.
H&C
Decision (IMM-2169-12)
[5]
Subsection 25(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27, provides that the Minister may
grant an applicant permanent resident status if “it is justified by
humanitarian and compassionate considerations relating to the foreign national,
taking into account the best interests of a child directly affected.”
[6]
In order to provide guidance to officers tasked
with such decisions and to ensure some measure of consistency in
decision-making, the Minister has published IP 5 Immigrant
Applications in Canada made on Humanitarian or Compassionate Grounds [IP5
Manual]. Therein the criterion of "unusual, undeserved or
disproportionate hardship" is found. It has been adopted by this Court as
appropriate and thus has more than mere administrative authority, as was
observed by Justice Shore in Singh v Canada (Minister of Citizenship and
Immigration), 2009 FC 11, at para 38:
Moreover, the criterion of “unusual,
undeserved or disproportionate hardship” or “difficultés inhabituelles et
injustifiées ou excessive” has now been adopted by this Court in its decisions
on subsection 25(1), which means that these terms are more than mere guidelines
(Liniewska v. Canada (Minister of Citizenship and Immigration), 2006 FC
591, 152 A.C.W.S. (3d) 500, at paragraph 16; Ruiz v. Canada (Minister of
Citizenship and Immigration), 2006 FC 465, 147 A.C.W.S. (3d) 1050, at
paragraph 35; Kawtharani v. Canada (Minister of Citizenship and Immigration),
2006 FC 162, 146 A.C.W.S. (3d) 338, at paragraph 16; Pashulya v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1275, 257 F.T.R. 143, at
paragraph 43; Legault v. Canada (Minister of Citizenship and Immigration),
[2002] 4 F.C. 358, 2002 FCA 125, at paragraphs 23 and 28; Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at
paragraph 17).
[7]
At the outset of the H&C decision, the
officer stated: “I consider that an unusual and undeserved hardship is a
disproportionate hardship.” The officer thereby conflated the criterion and
did so unreasonably. Even the officer’s own employer distinguishes these terms
in the IP5 Manual: “Sufficient humanitarian and compassionate grounds
may also exist in cases that do not meet the “unusual and undeserved” criteria
but where the hardship of not being granted the requested exemption(s) would
have an unreasonable impact on the applicant due to their personal
circumstances.”
[8]
I am unable to accept the submission of the
respondent that “it is clear from a review of the H&C decision that,
although the Officer may have used different wording, the Officer considered
whether the hardship alleged by the Applicants was unusual and undeserved or
disproportionate as defined by the Guidelines.” That is not at all clear from
reading the decision. On the contrary, the officer continually conflates these
criteria and regularly uses the phrase “disproportionate” to describe the
alleged hardship, as in the following examples:
•
“the evidence does not show that the applicants
have established themselves to such an extent that to return to [Sri Lanka] would represent disproportional hardship.”
•
“the situation [was not] sever [sic] to
the point as being [sic] a disproportionate hardship.”
•
although it would be a hardship, the applicants
had “not shown that [returning to Sri Lanka] would be a disproportionate
[hardship] for [Karththeepan].”
•
“the discrimination and violence that they may
face in [Sri Lanka as Tamils is not] to be a disproportionate hardship for [the
Rajanayagams].”
•
being accused of having links to the LTTE “may
be a hardship for the applicants but it is not described as a disproportionate
one.”
•
“[n]either the evidence submitted y the
applicants nor the recent country reports on discrimination or mistreatment of
women in [Sri Lanka] show that the discrimination is probable and of a
frequency or intensity that the discrimination would amount to disproportionate
hardship for them in [Sri Lanka].”
[9]
On this basis alone, the decision is
unreasonable and must be set aside.
PRRA Decision
(IMM-1267-12)
[10]
The “new” evidence before the officer in the
PRRA application consisted of affidavits of the three adult applicants, one
letter from Sri Lanka, two reports from a Psychologist, Dr. Thirwell, and
updated country condition information. In broad strokes, the officer found
that the scant new evidence provided by the applicants did not show that there
was more than a mere possibility that they would be persecuted in Sri Lanka, or
that there were substantial grounds to believe that they would be exposed to
the risks described in subsection 97(1) of the Act.
[11]
The applicants submit that four issues are
raised by the officer’s PRRA decision:
1.
Whether the officer breached the duty of
fairness owed to the applicants by failing to interview them or to provide them
with notice of his concerns with respect to the credibility of their evidence;
2.
Whether the officer breached the duty of
fairness by failing to give notice that he would consider the availability of
an internal flight alternative;
3.
Whether the officer erred in his analysis of
state protection; and
4.
Whether the officer erred in his assessment of
the medical evidence.
1. Failure
To Convoke An Oral Hearing
[12]
The applicants say that because the officer did
not believe that they were in Sri Lanka prior to coming to Canada and that they
suffered the ordeal they claim, he erred by failing to convoke an oral hearing
pursuant to paragraph 113(b) of the Act and section 167 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [Regulations].
[13]
In my view, the applicants have failed to
demonstrate that an oral hearing was required. Paragraph 167(c) of the
Regulations provides that the applicants, if they are to succeed, must
demonstrate that the new evidence discredited by the officer would, “if
accepted, have justified allowing the application for protection.”
[14]
The affidavit evidence of Sangeetha and
Guruparan was discredited, but it is unexplained how, if at all, accepting
their evidence would have justified allowing the application for protection.
Their affidavit evidence, to the extent it is even “new,” recounts incidents
which the RPD, through their mother’s evidence, found not credible, it
pre-dates 2006, and in light of the substantially changed circumstances in Sri Lanka since then, could have little if any bearing on the forward-looking risk facing
the applicants. Their evidence, even if believed, would not have been
determinative and accordingly, the officer was not obliged to convoke an oral
hearing.
2. Notice
of Internal Flight Alternative
[15]
The officer found that these applicants, even if
at risk, had an IFA in Colombo. They say that the officer erred in failing to
specifically bring to their attention that this IFA was being considered.
[16]
I agree with the submission made by the
respondent that an applicant cannot successfully allege unfairness in failing
to bring to his or her attention a specific IFA when it was the applicant and
not the officer who first raised it. That is the situation here. The
applicants, in their written PRRA submission, wrote as follows:
The UNHCR, when
addressing the option of Internal Flight Alternative in their guideline,
states, “In the case of a prospective IFA/IRA in Colombo, it should be borne in
mind that young Tamil men originating from the north and east of the country
could encounter closer scrutiny during the police registration process and may,
in some cases, be denied a permanent residence permit.” No Internal Flight
alternative therefore exists for this family and they would, upon return to Sri Lanka, return to the northern Tamil region to live.
[17]
The applicants were not only aware of the issue
of Colombo being an IFA, they raised it. There is no error.
3. State
Protection Analysis
[18]
The applicants submit that the officer erred by
(a) confusing the protection that could be afforded by Guruparan, then 19, with
state protection, and (b) focusing on the measures being taken by the Sri
Lankan government and not the effectiveness of those measures and in
selectively relying on evidence in the record.
[19]
The officer did not base his state protection
finding on Guruparan’s protection. Rather, the officer considered, based on
the record, that Guruparan’s presence was a relevant consideration as to
whether the female members of the applicant family would face persecution or
mistreatment. He said:
Although there are
reports of some discrimination and abuse of women in [Sri Lanka], often the abuse or discrimination, such as sexual assault, is described to more
frequently occur in former conflict zones and to women who do not have a male
protector or an adult male who accompanies them. The applicants include
Guruparan, a male who is now 19 years old. […]
[20]
There was nothing unreasonable, or even incorrect
in the officer considering, in light of the information before him, that the
actual situation of this family included an adult male and the impact this
would have on the allegation that the women would be at risk.
[21]
As to the other error, I agree with the
applicants that the officer fails to specifically address the passage in the US
DOS Report of 2009, quoted by the applicants in their submission, which
states: “The law prohibits rape and domestic violence but it was not
effectively enforced. Sexual assault, rape, and spousal abuse were pervasive
societal problems.”
[22]
The officer notes that the evidence indicates
that sexual assault and rape of women were more common in the conflict areas
and among women who had no male in the family. Critically, the officer also
found that “Neither the evidence submitted by the applicants nor the recent
country reports on serious mistreatment of women in SL show that treatment is
probable and of a frequency or intensity that would amount to a serious
mistreatment described in A97.” The use of the phrase “pervasive societal
problems” may hint at a frequency or intensity sufficient to meet the
requirement of section 97 of the Act, but I cannot say that the officer’s
assessment, within the context of the evidence as a whole, was unreasonable.
4. Medical
Evidence
[23]
The applicants submit that the officer was “obligated
to consider the overall medical history of Ms. Rajanayagam” are erred by
failing to do so. They reference the two letters from a psychologist, Dr.
Thirwell.
[24]
The officer considered these reports, which said that Ms. Rajanayagam
suffered from a post-traumatic stress disorder; however, the officer concluded
that the RPD’s credibility findings had more probative value as to the
allegations of past mistreatment. That assessment was certainly open to the
officer and it was not unreasonable.
[25]
As to the forward-looking issues implicated by the letters, the
officer found that the applicants had not provided evidence to show that due to
the depression and stress identified in the letters, the applicants would face
persecution or mistreatment as defined in the Act. That assessment, as well,
is unassailable. The applicants have not pointed to any evidence in the record
to the contrary.
Conclusion and
Certified Question
[26]
For the reasons given, the application for
judicial review in IMM-2169-12 is allowed and that in IMM-2167-12 is dismissed
[27]
The applicants proposed the following three
questions for certification, all of which the respondent opposes:
1. Does
an immigration officer commit a reviewable error in excluding from her
consideration on a humanitarian and compassionate application, information and
evidence which was, or could have been, previously considered by the Refugee
Division determining the merits of a refugee claim and/or by an officer
determining the merits of an application under the pre-removal risk assessment
program?
2. Where
a person presents evidence of establishment, acquired after her refugee claim
and/or PRRA application was refused, is an officer entitled to discount
entirely, or give diminished weight, to this evidence in making a decision on a
humanitarian and compassionate application because it was acquired at a time
when, in the officer’s opinion, the person ought to have left Canada?
3. Is
an officer required on a PRRA application to consider evidence from an adult
applicant about past events relating to her fear of returning to her country,
who at the time of his or her refugee hearing was a child and did not testify
to these past events, the veracity of which was rejected by the Refugee
Division on the basis of rejecting the testimony of the applicant’s parent?
[28]
The first two proposed questions relate
principally, if not entirely, to the H&C decision. The basis on which it
has been decided is not reflected in the questions and accordingly, they are
not appropriate for certification.
[29]
The third question is also not one that meets
the test for certification. As noted above, the issue of the evidence of these
children and its relevance turns ultimately on whether it would have affected
the outcome. I have found that it would not and accordingly, an answer to the
question is not dispositive of any appeal from this decision.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1. The application for judicial review in Court File
IMM-2167-12 is dismissed and no question is certified; and
2. The application for judicial review in Court File
IMM-2169-12 is allowed, the decision is set aside, the applicants’ application
for permanent residence on humanitarian and compassionate grounds is remitted
to a different officer for determination, and no question is certified.
"Russel W. Zinn"
Email this Content