Date: 20090909
Docket: IMM-1187-09
IMM-1185-09
Citation: 2009 FC 885
Ottawa, Ontario, September 9, 2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
SATHIYAKRISHNA PATHMANATHAN
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
These
two applications are for judicial review of two decisions rendered by an Immigration
Officer who denied the applicant’s pre-removal risk assessment application (PRRA)
in a decision dated February 3, 2009 and the applicant’s humanitarian and
compassionate (H&C) application for permanent residence under s. 25 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) in a decision dated
February 4, 2009.
FACTS
Background
[2]
The
applicant is a thirty-three (33) year old citizen of Sri Lanka. He has no
children. The applicant lives with his brother and his brother’s wife and their
two (2) children.
[3]
The
applicant entered the United Stated on January 15, 2000 and claimed refugee
protection. Then, the applicant entered Canada on April 15,
2000 before his application for refugee status could be completed in the U.S. The
applicant proceeded to claim refugee protection in Canada.
[4]
On
May 22, 2001 a panel of the Convention Refugee Determination Division of the
Immigration and Refugee Board (the Board) heard the applicant’s claim for
refugee protection. The basis of the applicant’s claim for refugee protection
was fear of persecution for reasons of race, imputed political opinion, and
membership in a particular social group. The applicant claimed that the Sri
Lankan army, the police, and the Liberation Tigers of Tamil Eelam (LTTE)
persecuted him because he was a young Tamil male from the north of Sri Lanka.
[5]
On
July 11, 2001 the Board denied the applicant’s claim for refugee protection. The
Board found that the applicant was not credible, trustworthy, and not able to
produce credible evidence that he lived in the north, thus the applicant could
not be found to be a “young Tamil male” from the north of Sri Lanka, which was
the basis of the applicant’s refugee claim (Board reasons, page 4).
[6]
On
November 6, 2001, this Court denied leave to judicially review the Board’s
decision.
[7]
The
applicant filed an H&C application for permanent residence under s. 25 of IRPA
on March 19, 2004. No affidavits were submitted at the time of the initial
H&C application in 2004. Instead the applicant referred the Officer to the
narrative in his Personal Information Form (PIF) and the submissions of his
representative. His submissions stated that his H&C application was based on
his solid employment record, volunteer activities, family ties in Canada, and
the risks of returning to Sri Lanka.
[8]
The
applicant filed a PRRA application on April 8, 2004. The PRRA application was
based upon the applicant’s risk in Sri Lanka as a young Tamil male
from the north of the country. The applicant filed an affidavit in support of
his PRRA application in 2004. In his affidavit he states his fear of being detained,
arrested, and tortured by government forces, pro-government militias, and the LTTE.
The applicant’s fear of detention by the government is based upon an incident
in 2000 where he was detained by the government for five (5) days. The
applicant also states his fear of being a target for extortion and kidnapping
for having lived in Canada for several years and having a brother that is
established here.
[9]
The
applicant filed updates to both applications on May 22, 2007 and September 23,
2008.
[10]
The
applicant submitted new affidavits in his May 22, 2007 PRRA and H&C updates.
His affidavit stated that he was seeking to be granted admission to Canada on the
grounds of establishment, risk, undue hardship, and family reunification. The
applicant’s affidavit describes the poor security and human rights conditions
in Colombo and the
risks of arrest and extortion he could face upon return.
[11]
In
his 2007 update, the applicant submitted an affidavit by his brother, who
stated that the applicant would have no one to turn to upon return to Sri Lanka
and that his identity as a young Tamil male from the north would require him to
hide and subsist without meaningful work. The applicant’s brother further
stated that it would be undue hardship for the applicant to be separated from
his family because he is an uncle to his two young nieces and has been living
with them for about six (6) years.
[12]
On
September 23, 2008 the applicant filed new affidavits by himself and his
brother to update his PRRA and H&C applications.
[13]
In
his 2008 update affidavit the applicant explained that he would be at risk from
the LTTE, pro-government militias, and the government in Colombo because he was
detained in the past by the government and he could not show a valid reason for
living in Colombo. The
applicant also stated that he could not live or work anywhere else other then
the volatile north because one requires a valid reason for being anywhere in
Sri Lanka if one is not originally from that area.
[14]
In
his 2008 update affidavit the applicant’s brother echoed the applicant’s
concerns over the inability to relocate to anywhere in the south or centre of Sri Lanka without
having a valid reason.
[15]
The
Immigration Officer rendered the PRRA decision on February 3, 2009 and the
H&C decision on February 4, 2009.
Decisions under review
PRRA decision
[16]
The
Immigration Officer states at page 4 the PRRA decision that the applicant was
unable to rebut the negative credibility findings of the Board with respect to
his alleged profile as a young Tamil male from the north of Sri Lanka who lived
in Jaffna.
[17]
The
Officer then considered Sri Lanka’s Current Country
Conditions. The Officer reviewed a variety of country reports and news items. The
Officer relied upon a decision of the UK Asylum and Immigration Tribunal which
held that non-governmental organizations offered assistance to northern Tamils
who relocated to Colombo after failing to claim asylum in the UK (PRRA decision,
page 4).
[18]
The
Officer concluded at page 7 of the PRRA decision that the applicant would not
be at risk if he relocated to Colombo and that the city meets
the two pronged test as viable internal flight alternative:
It is determined that a reading of
current, objective documentary evidence supports that the applicant would not
be subject to a serious possibility of persecution in Colombo, nor would it be
unreasonable or unduly harsh for him to relocate to that city. Evidence informs
that should it be required by the applicant, police protection is available in Colombo, and that NGOs and other organizations
are available to assist the applicant with his relocation upon his return to
that city.
H&C Decision
[19]
The
H&C decision relied on the same objective evidence that was cited in the
PRRA decision. The Officer concluded that it would not constitute undue
hardship for the applicant to avail himself of his internal flight alternative
to Colombo. The Officer
states at page 4 of the H&C decision that there is no evidence that
supports the applicant’s argument that he could not relocate to Colombo or that the
government will be detaining him upon return.
[20]
The
Officer concluded that the hardships associated with the risk of returning to Sri Lanka are not
unusual and undeserved or disproportionate to the applicant.
ISSUES
[21]
The
applicant raises the following issues in this application:
1.
Did the Officer
err in law or make a mistake of fact or an error in fairness or exceed
jurisdiction?
2.
Did the Officer
err in law or make a mistake of fact or an error in fairness or exceed
jurisdiction in relation to the finding that there is an IFA based on a United Kingdom refugee tribunal decision?
[22]
I
have reformulated the list of issues as follows:
a.
Did the Immigration
Officer breach her duty of fairness by not allowing the applicant an
opportunity to respond to the significant events in Sri Lanka that occurred in late 2008 and early 2009?
b.
Did the Immigration
Officer breach the duty of fairness by relying on a United Kingdom Asylum and
Immigration Tribunal decision that was not disclosed to the applicant?
c.
Did the
Immigration Officer have proper regard to all the evidence?
STANDARD
OF REVIEW
[23]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, 372 N.R. 1, the Supreme Court of
Canada reconsidered the number and definitions to be given to the various
standards of review, as well as the analytical process employed to determine
the appropriate standard in a given situation. As a result of the Court’s
decision, the standard of patent unreasonableness has been eliminated, and
reviewing courts must focus on only two standards of review, reasonableness and
correctness. In Dunsmuir, the Court also held that where the type of
decision being reviewed has been thoroughly assessed in the preceding
jurisprudence, subsequent decisions may rely on that standard.
[24]
The
first two issues relate to procedural fairness. It is trite law that questions
of procedural fairness are reviewed on a standard of correctness (see Sketchley
v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392).
[25]
The
third issue concerns the reasonableness of the Officer’s decision and whether
the Officer had proper regard to all the evidence when reaching a decision. In Baker v. Canada (MCI), [1999] 2
S.C.R. 817 at para. 62, the Supreme Court of Canada established that
reasonableness is the appropriate standard of review for H&C application
decisions.
[26]
It
is clear as a result of Dunsmuir, above, that such questions are to be
reviewed on a standard of reasonableness: see Christopher v. Canada (MCI),
2008 FC 964, Ramanathan v. Canada (MCI), 2008 FC 843 and Erdogu v.
Canada (MCI), 2008 FC 407, [2008] F.C.J. No. 546 (QL).
[27]
In
reviewing the Officer’s decisions using a standard of reasonableness, the Court
will consider “the existence of justification, transparency and intelligibility
within the decision-making process” and “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” (Dunsmuir, supra at paragraph 47).
ANALYSIS
Issue No. 1: Did the Immigration
Officer breach the duty of fairness by not allowing the applicant an
opportunity to respond to the significant events in Sri Lanka that occurred in late 2008 and early
2009?
[28]
In
the PRRA decision, the Officer commented on recent developments in the Sri Lankan
Civil War. The Officer stated as follows at page 5 of the PRRA reasons:
…Since the beginning of January 2009, the
rebels have lost their de facto capital, Kilinochchi, Elephant Pass, a land bridge that inks the Jaffna
peninsula with the mainland and recently the coastal town of Mullaitivu, which acted as one of their
key military bases. (BBC, Winning war and peace in Si-i Lanka, 2009) This marks
a new phase in the fighting between the security forces and the Tamil Tiger
rebels. Along with the help of international donors, the capture of Kilinochchi
has helped to rebuild some of the public buildings destroyed by years of
intense fighting. New shops have opened, produce from surrounding areas has
started coming to the local market and the reopening of the A9 highway has
linked the town with the rest of the country. (BBC, Key loss will test Tiger
Tamils, 2009) With its advances in the east of the country in 2007 and the
progress in the north in 2008, most of Sri Lanka is now under government
control (BBC, Q&A: Sri Lanka Crisis, 2009).
[29]
The
applicant states in his affidavit that there was no communication from the PRRA
Officer until he received the final decision. The applicant disagrees with the
findings of the Officer about current conditions, specifically the status of
the A9 highway and the condition of Tamils in Sri Lanka, which he states have deteriorated
since the late 2008 phase of the fighting started.
[30]
The
applicant argues that the Officer erred in failing to give the applicant the
opportunity to make submissions and file evidence regarding the “new phase” of
the Sri Lankan Civil War, which refers to the events in late 2008 and the
beginning of 2009. The applicant submits that the duty of fairness was breached
when the Officer took into account the weakened state of the LTTE in concluding
that the risk to the applicant has subsided. Had the applicant been informed of
the Officer’s inclinations to reach the conclusion on recent developments, it
is submitted that the applicant would have filed evidence to show that the risk
to Tamil males and Tamil civilians remains the same or is in fact heightened.
[31]
The
applicant relies on Mancia v. Canada (Minister of
Citizenship and Immigration), [1998] 3 F.C. 461, [1998] F.C.J. No. 565
[F.C.A.]. In Mancia, Dècary J.A. refined the law as it relates to the obligation to
inform applicants of new developments at para. 27:
¶27…(a) with respect to documents relied upon from public
sources in relation to general country conditions which were available and
accessible at Documentation Centres at the time submissions were made by an
applicant, fairness does not require the post claims determination officer to
disclose them in advance of determining the matter;
(b) with respect to
documents relied upon from public sources in relation to general country
conditions which became available and accessible after the filing of an
applicant's submissions, fairness requires disclosure by the post claims
determination officer where they are novel and significant and where they
evidence changes in the general country conditions that may affect the
Decision [emphasis added].
Dècary J.A. held that in deciding whether
fairness required disclosure, regard must be had to the following factors:
(a) the nature of the
proceeding and the rules under which the decision-maker is acting;
(b) the context of the
proceeding; and
(c) the nature of the
documents at issue in such proceedings (Mancia, supra at para.
23).
[32]
In
my view, Mancia, supra, requires disclosure of documents produced
after the applicant’s updated submissions, which evidence changes in the
general country conditions that affect the PRRA and H&C decision.
[33]
The
Officer relied on three BBC articles from early 2009 which describe major changes
in Sri
Lanka’s
country conditions that affected the Officer’s decision. The applicant submits
that the Officer found that the near collapse of the LTTE reduced the risk to
the applicant. It was submitted that disclosure would have allowed the
applicant to respond by filing additional evidence that shows that the risk to
Tamil males or Tamil civilians has not decreased and that the main highway to Jaffna, the A9
highway, has not in fact reopened.
[34]
The
applicant is correct in indicating that the impugned articles evidence a major
change in Sri
Lanka’s
country condition. The Civil War appeared to be drawing to a close according to
the new BBC materials. The shift of Sri Lanka from a country
embroiled in a decades long Civil War to normalcy is a significant and novel
change in country conditions. Procedural fairness required the Officer to
notify the applicant of the reliance upon these new sources of information,
which showed the impending end of the Civil War, and reduction of risk to a
Tamil like the applicant, and provide the applicant with an opportunity to
respond. This is a breach of the duty of fairness.
Issue No. 2: Did the Immigration
Officer breach the duty of fairness by relying on a United Kingdom Asylum and Immigration Tribunal decision
that was not disclosed to the applicant?
[35]
The
Officer relied on a United Kingdom Asylum and Immigration Tribunal decision of AN
& SS (Tamils – Colombo – Risk?) Sri Lanka CG, [2008]
UKAIT 00063 to support both the H&C and PRRA decisions. The Officer reproduced
parts of this decision at pages 6-7 of the PRRA decision and at page 4 of the
H&C decision. The Officer quoted the risk assessment in AN & SS
which held that relocation to Colombo, even without a family
network, was not difficult and that the risk of detention is minimal for low
profile or grassroots activists and even if detained, such detention is likely
to be short.
[36]
The
H&C and PRRA decisions indicate that Officer relied on AN & SS
to support the conclusion that appears at page 4 of the H&C decision and at
page 7 of the PRRA decision, namely that the risk of persecution in Colombo is
not serious and that relocation to Colombo will not be unreasonable or unduly
harsh if the applicant will avail himself of the local police protection and
the NGOs that assist relocating returnees.
[37]
The
applicant submits that the Officer erred in relying on this decision and erred
in failing to allow the applicant an opportunity to respond to the Officer’s
reliance upon it before the decisions were made.
[38]
There
is real doubt as to the validity of the AN & SS decision, which was
released on June 10, 2008, as an authoritative statement on the risk of
detention to Tamil returnees.
[39]
The
European Court of Human Rights (ECHR) came to a different conclusion than the
tribunal in a decision released on July 17, 2008. In NA v. The United
Kingdom,
(2008) Application no. 25904/07), the ECHR held at para. 145 that the greatest
possible caution should be taken when the returnee was previously detained
because records of past detention may be accessible to Sri Lankan airport
authorities and their interest in past detainees may shift with time:
¶145…
However, the Court considers that the greatest possible caution should be taken
when, as in the applicant's case, it is accepted that a returnee has previously
been detained and a record made of that detention. … Equally, in light of its
observations at paragraphs 130–136 and 142 above, the Court finds the passage
of time cannot be determinative of the risk to the present applicant without a
corresponding assessment of the current general policies of the Sri Lankan
authorities … Their interest in particular categories of returnees is likely to
change over time in response to domestic developments and may increase as well
as decrease. …the Court considers that there is a real risk that the
applicant's record will be available to the authorities at the airport...
[40]
On
January 19, 2009, the Honourable Mr. Justice Lloyd Jones of the High Court of
Justice, Queen’s Bench Division, Administrative Court in London delivered a
substantial judgment on a judicial review of decisions of the United Kingdom Secretary
of State with respect to a claim for asylum involving a national of Sri Lanka. (See R on
the application of SS (Sri Lanka) v. Secretary of State
for the Home Department, 2009 EWHC 233 (Admin)). This judgment held
that the European Court of Human Rights overruled the U.K. Asylum and
Immigration Tribunal Decision of AN & SS. Without providing more
detail, suffice to say that the U.K. decision relied upon by
the Immigration Officer has been held by the English High Court of Justice to
not be an authoritative statement on risk for Tamils in Sri Lanka.
[41]
In
my view, the Officer breached the applicant’s right to procedural fairness by
failing to give him the opportunity to respond to the Officer’s reliance upon AN
& SS.
[42]
The
AN & SS decision was a “significant and prejudicial development
affecting the applicant’s case” (see my decision in Ramanathan v. Canada
(MCI), 2008 FC 843, 74 Imm. L.R (3d) 85, para. 28). The risk assessment
conclusions in AN & SS reduced the risk of detention upon return to Sri Lanka in the eyes
of the Officer.
[43]
The
Court also considers that jurisprudence should not be used as evidence of
country conditions. An administrative tribunal’s decision is not evidence. It
is a judicial or quasi-judicial consideration of evidence produced by
witnesses, which witnesses may not be the most authoritative or expert on a
particular subject. This in fact turned out to be the case because the High
Court of Justice in England subsequently found that the administrative
tribunal was not an authoritative statement of the current risk.
Issue No. 3: Did
the Immigration Officer have proper regard to all the evidence?
[44]
On
a reasonableness standard, the Court finds it unreasonable for the Immigration Officer
to make this PRRA decision and this H&C decision in February 2009. In this
month, the war had just started three months before, and with hindsight, we
know that the war concluded three months later. The war conditions in Sri Lanka,
particularly involving Tamils, were volatile and dangerous. It was not
reasonable to make these decisions until “the smoke had cleared” and the war
was over. Then the Immigration Officer could assess the risks and determine the
level of “hardship” for the applicant to return to Sri Lanka, provide the
applicant with any new documents or reports upon which the Immigration Officer
was going to rely, and provide the applicant with an opportunity to respond
before making the decisions.
[45]
For
these reasons, these two applications for judicial review are allowed and the
matters are referred back to a PRRA Officer and to an H&C Officer for
redetermination.
CERTIFIED QUESTION
[46]
Both
parties advised the Court that these applications do not raise any serious
questions of general importance which ought to be certified for an appeal. The
Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
These applications are allowed and the matters are
referred back to another Immigration Officer for redetermination.
“Michael A. Kelen”
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