Date: 20091014
Docket: IMM-228-09
Citation: 2009 FC 999
Ottawa, Ontario, October 14, 2009
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
THOMAS
VINCENT CRUZE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review of the decision (the Decision) of a Pre-Removal
Risk Assessment Officer (the Officer) dated December 3, 2008 wherein the
Officer determined that there were insufficient Humanitarian and Compassionate (H
& C) grounds for the processing of the Applicant’s application for
permanent residence from within Canada.
I. Background
[2]
The
Applicant is a 37 year old citizen of Sri Lanka. The Applicant entered Canada in September
2005 and made a refugee claim. His refugee claim was denied in September 2006
and this Court dismissed his judicial review of that claim in November 2007. He submitted an application for permanent
residence on H & C grounds on January 17, 2008 and the application was
rejected on December 3, 2008. He also made a Pre-Removal Risk Assessment (PRRA)
application, which was denied, and is the subject of a separate judicial review
proceeding before this Court.
[3]
The Applicant’s H &
C application was based on his establishment in Canada, the
undue hardship he would face as a homosexual man returning to Sri Lanka, and alleged threats made against him by the family of his
former partner. The Officer found that the Applicant would not face unusual and
undeserved or disproportionate hardship if he were required to return to Sri Lanka to apply for permanent residence. The Officer was not
satisfied that there were sufficient H & C grounds to approve the exemption
request.
[4]
The
Applicant states that he is a homosexual who was in a long-term secret relationship
with a friend from College, Milroy. When their families found out about the
relationship, Milroy’s family locked him in the house and Milroy later committed
suicide in a car crash. According to the Applicant, Milroy’s family blamed him
for the death of their son and has threatened his life. The Applicant fled
first to Japan and then to Canada. The Applicant states there is no safe
place for him in Sri Lanka as hatred for homosexuals is prevalent all over
the country and that his hometown is close to Colombo and Kandy, two urban
centers identified as possible internal flight alternatives.
[5]
At
his H & C, the Applicant presented documents from Sri Lanka confirming
Milroy’s accident and death and letters of support from a Priest, Member of
Provincial Council and his friend, Sujeewa.
II. Standard
of Review
[6]
Prior
to the decision of the Supreme Court of Canada in Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, a PRRA Officer’s decision was assessed on a
standard of reasonableness simpliciter (Figurado v. Canada (Solicitor
General), 2005 FC 347, [2005] 4 F.C.R. 387 and Demirovic v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1284, [2005] F.C.J. No. 1560,
142 A.C.W.S. (3d) 831). It was also held that questions of fact were to be
reviewed on a standard of patent unreasonableness, questions of mixed fact and
law on a standard of reasonableness, and questions of law on a standard of
correctness (Kim v. Canada (Minister of Citizenship and Immigration),
2005 FC 437, 272 F.T.R. 62 at paragraph 19).
[7]
Following
Dunsmuir, above, the review of PRRA Officer decisions should continue to
be subject to deference by the Court and are reviewable on the newly
articulated standard of reasonableness. As a result, this Court will only
intervene to review a PRRA Officer's decision if it does not fall "within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law" (Dunsmuir, above, at paragraph 47). For a decision
to be reasonable there must be justification, transparency and intelligibility
within the decision making process.
III. Issues
[8]
The
application raises four issues, namely:
(a) Did the Officer err in law in finding that the Applicant was
not homosexual and was not threatened by his ex-lover’s family by failing to properly
consider the Applicant’s supporting documentation?
(b) Did the Officer err in law in assessing the Applicant’s
hardship if removed to Sri Lanka by failing to apply the appropriate standard
when assessing the risk factors within the H & C application?
(c) Did the Officer err in law in her finding that the Applicant
could live safely in Colombo and that homosexuals did not face persecution and
a risk of violence by ignoring and/or misunderstanding the objective
documentary evidence before her?
(d) Did the Officer err in law in her assessment of the
Applicant’s establishment and integration into Canadian Society?
A.
Did the
Officer Err in Law in Finding that the Applicant Was Not Homosexual and Was Not
Threatened by His Ex-Lover’s Family by Failing to Properly Consider the
Applicant’s Supporting Documentation?
[9]
At
his refugee hearing, the Refugee Protection Division (RPD) stated they did not
believe that the Applicant was homosexual, that he had been in a relationship
with Milroy or that Milroy committed suicide, as there was no corroborative
evidence. In addition, the RPD found that the Applicant’s evidence was not
consistent and was at times embellished and implausible. Subsequently, the
Applicant obtained evidence that purports to adequately address the RPD’s credibility
and other concerns. This evidence was the post-mortem report of Milroy’s death
and letters from a Priest, Member of Provincial Council and his close friend
Sujeewa, all of which allegedly corroborated the fact that the Applicant was a homosexual
man who had a same sex relationship with Milroy and the fact that Milroy died
in a car accident.
[10]
After
reviewing the evidence, the Officer stated that the post-mortem material was
reliable evidence that Milroy died of a car accident, but the suggestion that
the accident was suicide was speculative. The Officer continued, stating that
while he considered the two letters and the affidavit, he gave them little
weight. The Officer noted that Sujeewa is the Applicant’s “best friend” and
therefore not disinterested in the outcome, the letter from the Councillor was
written at the Applicant’s brother’s request and restated much of the
Applicant’s claim, as did the letter from the Priest. The Officer stated that
this evidence was not sufficient to address the RPD’s credibility findings.
[11]
The
Applicant argues that the Officer’s rejection of the supporting evidence was
unreasonable. He cites Elezi v. Canada (Minister of
Citizenship and Immigration), 2008 FC 422, [2008] F.C.J. No. 562 for
the position that it is an error of law to discount evidence solely because it contradicts
prior conclusions. In Elezi v. Canada (Minister of Citizenship
and Immigration), above, Justice Daniele Tremblay-Lamer found that it had
been unreasonable for the PRRA Officer in that case to accord little probative
value to the “new evidence” declarations because they discussed facts that the
Board had already rejected for lacking credibility.
[12]
In
this matter, the Officer reviewed the three statements and found that the
letter from his best friend Sujeewa provided no new evidence with respect to
what was before the RPD. It is also clear that the Officer determined that his
friend had a personal interest in the matter and as such accorded this evidence
little weight, which the Officer was entitled to do under the circumstances
(see Ferguson v. Canada (Minister of Citizenship and Immigration), 2008
FC 1067, [2008] F.C.J. No. 1308 at paragraph 27).
[13]
In
addition, the Officer reviewed the letter from the provincial councillor and
notes that the letter was produced at the request of the Applicant’s brother to
enable the Applicant to obtain his document to live in Canada. It is also
clear from a review of the letter that the councillor did not have first hand
knowledge of the Applicant nor does the letter refer directly to the sexual
orientation of the Applicant.
[14]
Finally,
the Officer reviewed the letter from the Priest and considered the statements
contained therein. Again, the letter is not a first hand account with respect
to this issue and relies upon statements made to the Priest by family members.
[15]
The
Officer accorded these statements little weight and concluded that there was
insufficient new evidence to overcome the finding of lack of credibility on the
part of the Applicant by the Board.
[16]
I
find that the Officer did not reject this evidence solely as a result of the
Board’s prior determination (see Sanchez v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1336, [2008] F.C.J. No. 1673). Rather,
the Officer assessed whether the evidence was credible and concluded that it
was not. In Ferguson, above, Justice Russel Zinn stated at paragraph
25:
Documentary evidence may also be found to
be unreliable because its author is not credible. Self-serving reports may fall
into this category. In either case, the trier of fact may assign little or no
weight to the evidence offered based on its reliability, and hold that the legal
standard has not been met.
[17]
When,
as here, the fact asserted is critical to the H & C application, it was
open to the Officer to require more evidence to satisfy the legal burden, especially
in light of the findings of the Board. As Justice Simon Noël noted in Zamanibakhsh
v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 1137, [2002] F.C.J. No. 1525 at paragraph
16:
Homosexuality is an integral part of a
human being. In order to prove such a state, the applicant must present factual
evidence that demonstrates such a way of being. The Applicant bears the onus of
proof, and the CRDD found that he did not satisfy them.
[18]
I
find that the conclusion reached by the Officer falls within the range of
reasonableness and that no error was made.
[19]
Given
my conclusion with respect to issue (a), there is no need to address issue (c)
as it is premised upon a determination that the Officer’s conclusion with
respect to the Applicant’s sexual orientation was unreasonable.
B.
Did the Officer
Err in Law in Assessing the Applicant’s Hardship if Removed to Sri Lanka by
Failing to Apply the Appropriate Standard When Assessing the Risk Factors
Within the H & C Application?
[20]
The Applicant argues
that the Officer erred in not applying the appropriate standard when assessing
the risk factors within the H & C application. The Applicant relies on the
decisions of Chief Justice Allan Lutfy in Pinter v. Canada (Minister of Citizenship and Immigration), 2005 FC 296, 44 Imm. L.R. (3d) 118 and Justice
Yves de Montigny in Ramirez v. Canada (Minister of Citizenship and Immigration), 2006 FC 1404, 60 Imm. L.R. (3d) 27 for
three primary positions. First, that the concept of “hardship” in an H & C application
and the “risk” contemplated in a PRRA are not equivalent and must be assessed
according to a different standard. Second, that when assessing risk factors
within an H & C application, the Officer should ask themselves whether the
risk factors amounted to unusual, undeserved or disproportionate hardship. Third,
that the Officer cannot merely adopt the assessment of risk made by the IRB or
the PRRA without further analysis of the purpose of the H & C application.
[21]
I note that in Ramirez,
above, Justice de Montigny stated at paragraph 43 that “it is perfectly
legitimate for an officer to rely on the same set of factual findings in
assessing an H & C and a PRRA application, provided that these facts are
analyzed through the right analytical prism.”
[22]
I find that the
Officer did use the proper standard to assess the Applicant’s H & C and did
not rely only on the PRRA assessment of risk. At page 9 of the Decision, the
Officer wrote:
[…]
I am not satisfied that the applicant will suffer unusual, undeserved or
disproportionate hardship due to risk in Sri
Lanka as a gay male. And
while I accept that the presence of an IFA is not determinative in an H & C
application as it is in a risk assessment, I find that it, and the presence of
the applicant’s family, significantly mitigates the hardship the applicant is
likely to face. I find that Colombo will offer the applicant safety from
those he feels may harm him. Additionally I am satisfied the applicant will be
able to obtain support from an increasingly visible gay and lesbian community
in that city.
D. Did the Officer Err in Law in Her
Assessment of the Applicant’s Establishment and Integration into Canadian
Society?
[23]
The Applicant argues
that the reasons given and analysis on the issue of establishment were
inadequate because the reasons did not indicate how the Officer reached her
conclusion.
[24]
The Applicant argues
the reasons need to be sufficiently clear, precise and intelligible so that a
claimant may know why his or her claim has failed and be able to decide whether
to seek leave for a judicial review (see Ogunfowora v. Canada (Minister of
Citizenship and Immigration), 2007 FC 471, 63 Imm. L.R. (3d) 157; Via
Rail Canada Inc. v. National Transportation Agency (C.A.), [2001] 2 F.C. 25, 193 D.L.R. (4th) 357 (F.C.A.)).
The Applicant relied on the decision of Justice Eleanor Dawson in Raudales
v. Canada (Minister of Citizenship and Immigration), 2003 FCT 385, [2003] F.C.J. No. 532 for
the position that establishment is a relevant factor to consider when assessing
an H & C application. I note that in Raudales, above, Justice Dawson
determined that the Officer made an unreasonable finding of fact but limited
the finding to that case.
[25]
Given that many
factors are considered and balanced on an H & C there is no reason for the
Officer to explain why the consideration of one factor alone did not lead to a
positive decision (see Dhillon v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1067, [2005] F.C.J. No. 1336). The Officer needed to
demonstrate by her reasons that she had taken into account all of the evidence
before her and had not taken into account irrelevant factors.
[26]
The Officer
considered the fact that the Applicant was employed and attended school while in
Canada and viewed this favorably. The Officer
also noted that the Applicant had been away from Sri Lanka since 1997, but
noted that he had studied and worked in Japan until he came to Canada in 2005;
that his establishment in Canada was as a result of a refugee claim, and that
his family was in Sri Lanka and he had listed no friends or relationships in
Canada that may lead to hardship if severed. The Officer found that, while it
may be difficult to return to Sri
Lanka, this did not amount
to unusual, undeserved or disproportionate hardship.
[27]
In
this case the Officer did not make any mistakes as to her findings of fact. The
reasons provided balanced the Officer’s findings and were sufficiently clear
that the Applicant could know why his claims had failed. The reasons were
adequate.
[28]
Neither
party proposed a certified question and no question will be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this application
for judicial review be dismissed.
“ D.
G. Near ”
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