Date: 20090709
Docket: IMM-133-09
Citation: 2009 FC 716
Toronto, Ontario, July 9,
2009
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
ARAVINTHAN
ARIYATHURAI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Aravinthan Ariyathurai (the “Applicant”) seeks judicial review of the decision
of Pre-Removal Risk Assessment Officer L. D’Alessandro (the “PRRA Officer”). In
that decision dated November 26, 2008, the PRRA Officer found that the
Applicant would not be subject to a risk of persecution, torture, risk to life
or risk of cruel or unusual treatment or punishment if returned to his country
of nationality, Sri Lanka.
[2]
The
Applicant, a thirty-four year old citizen of Sri Lanka, lived in Jaffna, in the
north of the country. He was forced to leave Jaffna in 1995, following seizure
of that area by the Sri Lankan Army (“SLA”). He was forced to
return to Jaffna by the
authorities in July 1997. He was later arrested by the SLA and tortured.
[3]
The
Applicant left Jaffna in December 2004 and went to Colombo, after he
had received extortion demands from the Liberation Tigers of Tamil Eelam
(“LTTE”). In January 2005, he fled Colombo and went to California. On March
13, 2005, he arrived in Canada and claimed refugee protection under the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”).
[4]
In
a decision dated June 13, 2008, the Immigration and Refugee Board, Refugee
Protection Division dismissed his claim. He applied for Pre-Removal Risk
Assessment on the basis that he was at risk in Sri Lanka due to his status as
an ethnic Tamil from Sri Lanka, claiming that he feared the SLA, the LTTE, the
police and other Tamil militants, as well as the possibility of extortion. He
alleged that he could return neither to the north of the country because the SLA and
paramilitary forces have inquired about him, nor to the east which is
overwhelmed with internally displaced Tamils. The Applicant submitted new
evidence with his PRRA application, consisting of the death certificate of his
brother, various documents supporting his residency and employment in Sri
Lanka, a statement from his wife attesting to his arrest in Sri Lanka and
various news articles and country documents concerning the situation in Sri
Lanka.
[5]
The
PRRA Officer found that the risks identified by the Applicant were
substantially the same ones that he had presented to the Board. He concluded
that the Applicant had failed to establish a link between his situation and
those described in the documentary evidence such that he could show a
personalized risk if he were returned to Sri Lanka.
[6]
The
first matter to be addressed here is the applicable standard of review.
Findings of nexus to a Convention ground are questions of mixed fact and law,
reviewable on the standard of reasonableness simpliciter; see Jayesekara
v. Canada (Minister of
Citizenship and Immigration) (2001), 211 F.T.R. 100. Subsequent to the
decisions of the Supreme Court of Canada in Dunsmuir v. New
Brunswick,
[2008] 1 S.C.R. 190, this standard is now identified as reasonableness.
[7]
I
am satisfied, on the basis of the record before me that the PRRA Officer
committed a reviewable error in rejecting the Applicant’s claim for protection
because he did so without regard to the evidence that was submitted. This means
that the decision fails to meet the standard of reasonableness.
[8]
I
find that the PRRA Officer erred by failing to recognize that the Applicant is
as described within a particular social group, that is the group of ethnic
Tamils who lived in the north of Sri Lanka. The PRRA Officer acknowledged the
Applicant’s submissions that he would be at risk in Sri Lanka as a result
of this status but then failed to address the submissions in his analysis.
Since there was no expression of doubt about the Applicant’s credibility, the
finding that the Applicant is not a member of a particular and identifiable
group of individuals that would face persecution as a result of their
membership in a particular social group, fails to meet the standard of
reasonableness.
[9]
A
proper assessment of the evidence would have led to the conclusion that the
Applicant had established an objective basis for his claim for protection. The
PRRA Officer either ignored the evidence or misapprehended the evidence. In the
result, the decision merits judicial intervention.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is allowed, the decision of the PRRA Officer is
quashed and the matter is remitted to a different officer for re-determination.
There is no question for certification arising.
“E.
Heneghan”
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