Date: 20091204
Docket: IMM-2181-09
Citation: 2009 FC 1237
Ottawa, Ontario, December 4,
2009
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
MAHENDRAN,
Indrakumar
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a negative
decision of a Pre-Removal Risk Assessment Officer (the Officer) concerning Indrakumar
Mahendran (the Applicant).
Factual Background
[2]
The
Applicant is a 32 year old citizen of Sri Lanka. He is of Tamil
ethnicity and originates from northern Sri Lanka. He fled Sri
Lanka in 2001, arriving in France where he lived until his asylum claim was
rejected. He came to Canada in November, 2004 and seeked asylum. His claim
for refugee protection was denied on November 15, 2006 and his application for
judicial review of that decision was dismissed.
[3]
He
then applied for a pre-removal risk assessment. It was refused on March 17,
2009. That decision is the subject of this judicial review.
Impugned Decision
[4]
The
Officer begins by briefly setting out the factual background of the case and
notes the Refugee Protection Division (RPD) dismissed the Applicant’s claim
citing credibility issues as a determinative concern. The Officer goes on to
reproduce some of the credibility issues detailed by the RPD. These include
negative inferences based on the Applicant’s failure to establish his residency
for the five year period before he left Sri Lanka, the failure
to provide documentation from the French refugee claim at the time of hearing
and inconsistencies between the two claims.
[5]
The
Officer indicates that she is guided by the decisions of this Court in Raza
v. Canada (Minister of Citizenship and Immigration), 2006 FC 1385, 304
F.T.R. 46 (QL) and Kaba v. Canada (Minister of Citizenship and Immigration),
2007 FC 647, [2007] F.C.J. No. 874 (QL) which lead her to conclude that
documentary evidence showing that human rights issues exist in a country is
insufficient to allow for a positive PRRA finding; an individualised risk must
also be shown. She notes that counsel for the Applicant has submitted
documentation that she has read and considered. She finally concludes that “… None
of the documentation rebuts the serious credibility findings of the RPD and
does not present evidence regarding the personalized risk of the applicant. …”
[6]
The
Officer then goes on to review the documentary evidence on country conditions
in Sri
Lanka.
She reproduces sections of both the 2008 U.S. Department of State Country
Reports on Human Rights Practices for Sri Lanka and the 2006 UNHCR
position on the international protection needs of asylum seekers from Sri Lanka
commenting on the situation of Tamil people in Sri Lanka. She then
writes that she acknowledges the changing circumstances in Sri Lanka but that
recent events have brought almost the entire country under government control;
she references a BBC News Country Profile in a footnote to her conclusion. She
finally concludes that there is no objective evidence that the government of
Sri Lanka denies core human rights to its Tamil citizens nor that the Applicant
is at risk from the government, army, the Liberation Tigers of Eelam (LTTE) or
any other group.
[7]
The
Officer reaches that conclusion despite the fact that she accepts that the
Applicant is a male Tamil from the north. She considers that he has presented
insufficient evidence of a personalized risk.
Issues
[8]
The
Applicant has raised a number of issues. I have restated those that I will
answer as follows:
a. Did the
Officer err when finding that there was no new evidence regarding the materials
elements of the claim?
b. Did the
Officer err by requiring the Applicant to establish a personalised risk and by
failing to conduct a proper assessment of whether the Applicant has a well
founded fear of persecution as a young Tamil male from the north of Sri Lanka?
c. Did the
Officer breach the duty of fairness by failing to disclose her intention to
rely on changing circumstances in Sri Lanka and documentary
evidence relating thereto?
d. Did the
Officer err in the assessment of the impact of changing circumstances on the
objective basis of the Applicant’s fear?
Legislation
[9]
Immigration
and Refugee Protection Act, S.C. 2001, c. 27.
|
112.
(1) A person in Canada, other than a person referred to in subsection 115(1),
may, in accordance with the regulations, apply to the Minister for protection
if they are subject to a removal order that is in force or are named in a
certificate described in subsection 77(1).
113.
Consideration of an application for protection shall be as follows:
(a) an
applicant whose claim to refugee protection has been rejected may present
only new evidence that arose after the rejection or was not reasonably
available, or that the applicant could not reasonably have been expected in
the circumstances to have presented, at the time of the rejection;
|
112.
(1) La personne se trouvant au Canada et qui n’est pas visée au paragraphe
115(1) peut, conformément aux règlements, demander la protection au ministre
si elle est visée par une mesure de renvoi ayant pris effet ou nommée au certificat
visé au paragraphe 77(1).
113.
Il est disposé de la demande comme il suit :
a) le
demandeur d’asile débouté ne peut présenter que des éléments de preuve
survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles
ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances,
de s’attendre à ce qu’il les ait présentés au moment du rejet;
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Analysis
Standard of review
[10]
The
parties have submitted that the questions at issue in this judicial review that
address factual findings are to be reviewed on the standard of reasonableness
and given deference. I agree with this submission. In conducting such a review,
the Court looks to the justification, transparency and intelligibility of the
decision and whether it falls within the range of acceptable outcomes
defensible on the facts and in law (Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 47). I would add that a breach of
procedural fairness is an error in law and thus the standard of review is
correctness (Soares v. Canada (Minister of
Citizenship and Immigration), 2007 FC 190, 308 F.T.R. 280).
Furthermore, the question of whether the Officer erred by conflating the tests
under sections 96 and 97 of the Act is also held to a standard of correctness (Pillai
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1312, 339 F.T.R. 32).
Did the Officer err in
finding that there was no new evidence regarding the materials element of the
claim?
[11]
The
Applicant submits that the Officer erred in finding that there was no new
evidence regarding the materials elements of the claim and that the documentary
evidence presented in support of the PRRA demonstrates there have been many
significant changes, including drastically deteriorating conditions affecting
young Tamil males.
[12]
The
Respondent counters this allegation by saying that the Officer reasonably found
that the Applicant did not submit any new evidence to rebut the serious
credibility findings made by the RPD and there was insufficient evidence to
allow her to reach a different conclusion that the findings made by the
RPD.
[13]
This
issue is entirely factual and the Applicant himself admits that the only new
evidence provided was documentary evidence on the country conditions. The
Applicant did not bring new evidence to rebut the credibility findings made by
the RPD, nor any other evidence related to a new risk other than the
deteriorating country conditions. Furthermore, it is quite clear that the
Officer considered the evidence on deteriorating country conditions in reaching
her conclusion. Not only did she state this explicitly but she also
engaged in an analysis of the country conditions in Sri Lanka and how they
relate to the Applicant’s situation. The decision as a whole clearly shows that
the Officer examined the claim based on the deteriorating country conditions
and there is no reviewable error on this ground.
Did the Officer err by
requiring the Applicant to establish a personalised risk and by failing to
conduct a proper assessment of whether the Applicant has a well founded fear of
persecution as a young Tamil male from the north of Sri Lanka?
[14]
The
Applicant also alleges that the Officer erred in law by conflating the
different tests under sections 96 and 97 of the Act. He submits that section 96
of the Act does not require that the Applicant establish a personalized risk
and that the Officer erred in law by failing to conduct a proper section 96
analysis and focusing solely on a personalized risk under section 97 of the
Act.
[15]
The
Applicant emphasizes that, despite the fact that it is unclear in the reasons
what impact the RPD credibility findings had on the Officer’s assessment, the
Officer did explicitly accept that the Applicant is a young Tamil male from the
north of Sri Lanka. Consequently the Officer should have assessed the evidence
and evaluated if the Applicant might have a well founded fear on that basis and
erred by not doing so.
[16]
The
Respondent insists that the general documentary evidence cannot in itself
establish that granting protection is warranted. The Respondent asserts that
there must be a connection between the Applicant’s circumstances and the
evidence under both sections 96 and 97 of the Act. The Respondent likens the
Applicant’s argument to stating that refugee protection would have to be
extended to every, young Tamil male from northern Sri Lanka.
[17]
In
support of his submission, the Applicant relies on the decision of Justice
Martineau in Fi v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1125, [2006] F.C.J. No. 1401
(QL). However, I do not find that this case offers much guidance due to the numerous
factual differences between that case and the one at hand. Instead, I would
adopt that line of cases cited by the Respondent in which it has been held that
simply using the words such as “individualized risk” does not mean that the
different tests under sections 96 and 97 have been conflated (see Pillai
and Kaba). I agree that simply referring to an individualised risk being
required does not mean that the Officer misunderstood the difference between
the two tests.
[18]
Although
the Officer stated that documentary evidence alone was not sufficient and that
there must be evidence of an individualised risk, I am satisfied that her
reasons as a whole demonstrate that she understood the difference between the
two tests and she did apply the two tests accordingly. The Officer
considered evidence on the country conditions in Sri Lanka, including
the situation of individuals similarly situated to the Applicant, and dismissed
the application based on her findings on the changing country conditions along
with her conclusion that the Applicant did not present individual
characteristics that would put him at risk. In doing so, she did assess the
risks faced by the Applicant as a young Tamil male but felt that this risk was
negated by the changing country conditions in Sri Lanka. She further
found that there was not an individualised risk as the Applicant did not
present any characteristics that would put him at risk from the government or
the LTTE. I do agree that her analysis could have been more clearly articulated
but it was not unreasonable.
Did the Officer breach
the duty of fairness by failing to disclose her intention to rely on changing
circumstances in Sri Lanka and documentary
evidence relating thereto?
[19]
The
Applicant submits that the Officer’s reliance on the BBC News country profile
amounted to a breach of the duty of fairness owed to him as set out by the
Federal Court of Appeal in Mancia v. Canada (Minister of Citizenship and
Immigration), [1998] 3 F.C. 461 (C.A.) (QL). He holds that the Officer, in
finding that there was no objective evidence showing the systemic denial of
core human rights, was looking for evidence subsequent to the BBC News article
and he was unable to provide such evidence as he had not been advised of the
Officer’s intention to rely on the information which indicated a change in
country conditions. The Applicant asserts that he had submitted ample objective
evidence on the systemic denial of core human rights by the government of Sri Lanka which
addressed the period previous to the BBC News Country Profile. He urges that
this is a clear indication that the Officer viewed the BBC News Country Profile
as significant information evidencing a change in general country conditions
that was determinant in the disposition of the case.
[20]
The
Respondent contends that disclosure was not required and the Officer did not
breach the duty of fairness owed to the Applicant. The Respondent submits that
the Officer merely relied on an updated country report which she has the right
to do and that she could not be limited to the materials filed by the Applicant
(see Hassaballa v. Canada (Minister of Citizenship and Immigration),
2007 FC 489, [2007] F.C.J. No. 658 (QL)). The Respondent further submit
that the Applicant was not denied a meaningful opportunity to fully present his
case as to risk as the BBC News Country Profile is a publicly available
document, containing information that is widely reported, and one could presume
that the Applicant and his counsel would be aware of its existence (Al Mansuri v. Canada (Minister of Public Safety and
Emergency Preparedness), 2007 FC 22, [2007] F.C.J. No. 16 (QL)).
[21]
In
Mancia, the Federal Court of Appeal clearly established the threshold
for procedural fairness when an officer relies on a document from a public
source in relation to general country conditions which became available after
the filing of submissions. The duty of fairness requires that an officer
disclose such documents where they are “novel and significant and where they
evidence changes in the general country conditions that may affect the decision”
(at paragraph 28).
[22]
The
Applicant submits that the BBC News Country Profile used by the Officer should
have been disclosed. In her reasons, the Officer’s reviews two pieces of
documentary evidence, one dated from 2008 and the other from 2006, which detail
a variety of human rights violations in Sri Lanka where the
majority of the victims were Tamils. She then writes: "I acknowledge the
changing circumstances in Sri Lanka; however, recent events
indicate that the government has almost achieved total control of the country.
I have no objective evidence before me that the government of Sri Lanka is
subjecting Tamil citizens to a sustained and systemic denial of their core
human rights." She references the BBC News Country Profile in support of
the first statement.
[23]
Based
on the reasons, it is clear that the article had a significant impact on the
Officer’s decision. Relying on the changing country conditions described in the
BBC News Country Profile, the Officer essentially discounted all of the other
documentary evidence presented by the Applicant in support of his claim. This
is quite different from the cases relied on by the Respondent where the
documents in question were updated versions of reports submitted by the
claimants and where the claimants had submitted other documents that addressed
similar issues. Here, the Applicant submitted extensive documentary evidence from
well-known sources but could not know that it would be discounted on the basis
of one news article showing a change in country conditions. I agree with the
Applicant that the Officer did more than merely rely on an updated country
report and he could not fully and fairly present his case as a consequence.
Thus I find that the document should have been disclosed and the failure to do
so was a breach of the duty of fairness.
Did the Officer err in
the assessment of the impact of changing circumstances on the objective basis
of the Applicant’s fear?
[24]
The
Applicant submits that a PRRA officer, like the RPD, must have a view of
the stability and the probability of continuation of the change in country
conditions which resulted in the finding of a lack of risk (Boateng v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 479 (QL), 64 F.T.R. 197
(F.C.T.D.). He adds that a plain reading of the reasons indicates that the
Officer did not assess the impact of the changing country conditions on the risks
to young Tamil males and she did not turn her mind to the stability and
probability of continuation of the change in country conditions. Furthermore,
there was no evidence before the Officer that would provide a factual basis for
the finding that that changing circumstances would eliminate the basis of the
Applicant’s fear.
[25]
The
Respondent contends that the assessment of the evidence remains strictly
within the purview of the Officer. Moreover, so long as the Officer is aware of
the general country conditions and the context of the Applicant’s claim, the
decision is not subject to review. The Respondent argues that the Applicant’s
allegation is akin to asking the Court to reweigh the evidence which it must
refrain from doing.
[26]
In
light of my conclusion on the previous question at issue, I believe that this
question is not so much one of the impact of the changing country conditions on
the Applicant’s fear but rather how the Officer could have effectively weighed
the evidence on human rights since the change in country conditions without
actually having any evidence in front of her as the Applicant was never given
an opportunity to respond. This Court has held that the RPD, when finding that
there is an absence of risk due to changing country conditions, must have a
view of the stability of and the probability of continuation of the change in
country conditions (see Chowdhury v. Canada (Minister of Citizenship and
Immigration), 2008 FC 290, [2008] F.C.J. No. 368 (QL)). The Officer in this
case had no evidence in front of her to evaluate this question and engage in an
effective weighing of the evidence for and against the changed country
conditions and how they might affect the Applicant.
[27]
In
light of my previous findings, I consider that there was a breach of the duty
of fairness.
[28]
No
questions for certification were proposed and none arise in this case.
JUDGMENT
THIS COURT
ORDERS that the application for judicial review be allowed. The matter is remitted back for
redetermination by a newly appointed Officer. No question is certified.
“Michel
Beaudry”
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