Date: 20110203
Docket: IMM-3323-10
Citation: 2011 FC 122
Ottawa, Ontario, February 3, 2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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ANICETUS REGAN GUNARATNAM
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Anicetus
Regan Gunaratnam’s application for a Pre-removal Risk Assessment was refused on
the grounds that he had not shown that he would be at risk in Sri Lanka.
[2]
Mr.
Gunaratnam challenges the PRRA Officer’s decision, asserting that the Officer
erred in discounting the new evidence that he had provided in support of his
claim, and in failing to allow him to explain a discrepancy in the information
that he had submitted. The Officer further erred, Mr. Gunaratnam says, by
failing to provide him with an opportunity to address documentary evidence
relating to novel and significant changes to country conditions within Sri
Lanka.
[3]
For
the reasons that follow, the application will be allowed.
The Officer’s Treatment of the “New” Evidence
[4]
Mr. Gunaratnam is a
young Tamil, originally from the north of Sri Lanka. He claimed to be at risk
in Sri Lanka from a paramilitary group known as the Eelam Peoples Democratic
Party (EPDP), as he had been wrongly accused by a former classmate of being a
supporter of the LTTE. The Refugee Protection Division found there to be no
credible basis for his claim.
[5]
Mr.
Gunaratnam’s PRRA application was based upon the same allegations of risk as
were advanced in his refugee claim. He provided several letters from Sri Lanka
in support of his PRRA application: one from the family priest, one from a
Member of Parliament and several from Mr. Gunaratnam’s father’s lawyer. These
letters refer to ongoing threats purportedly made against Mr. Gunaratnam and
his family, as well as the unsafe situation in Sri Lanka for Tamils generally.
[6]
The
Officer refused to consider the letters, to the extent that they referred to
events ostensibly occurring prior to Mr. Gunaratnam’s departure from Sri Lanka.
Mr. Gunaratnam conceded at the hearing that this was entirely appropriate,
given that these portions of the letters clearly did not meet the test for new
evidence established by the Federal Court of Appeal in Raza v. Canada
(Minister of Citizenship and Immigration), 2007 FCA 385, [2007] F.C.J. No.
1632.
[7]
The
Officer did consider the letters to the extent that they referred to ongoing
threats against Mr. Gunaratnam and his parents. Given that none of the authors
appeared to have any first-hand knowledge of the threats, it was not
unreasonable for the Officer to give the letters little weight.
[8]
Mr.
Gunaratnam also says that the Officer erred in failing to consider the evidence
in the letters with respect to the general risk environment for young Tamils in
Sri Lanka. However, the Officer clearly stated that “the documentary evidence”
demonstrated that the Tamil minority in Sri Lanka had experienced many problems
with the Sinhalese majority, which were ongoing. In light of this, I am not
persuaded that the general country condition information contained in the
letters was overlooked.
The Issue of Mr. Gunaratnam’s Parent’s Address
[9]
Mr.
Gunaratnam says that his parents have been living in hiding because of on-going
harassment by the EPDP. However, the PRRA Officer noted that Mr. Gunaratnam had
given the same home address for his parents in 2009 as had been provided to the
Refugee Protection Division in 2005. The Officer found that this called his
claim that his parents had been forced to live in hiding into question.
[10]
Mr.
Gunaratnam says that the Officer should have afforded him an opportunity to
explain this discrepancy. He says that he would have explained that the address
given was his parents’ ‘permanent address’, but was not where they were in fact
living.
[11]
The
discrepancy in the parents’ address was evident on the face of the documents
that Mr. Gunaratnam provided to the PRRA Officer. Moreover, the Refugee
Protection Division had devoted a considerable portion of its analysis to the
issue of where Mr. Gunaratnam’s parents were living at the material times. In
these circumstances, he should have been aware that there was an inconsistency
in the information that he had provided, and should have explained this
discrepancy. There was no obligation on the Officer to put the discrepancy to
Mr. Gunaratnam.
The Failure of the
Officer to Disclose Country Condition Information
[12]
Mr.
Gunaratnam’s PRRA application was filed in April of 2008, at the height of the
conflict in Sri Lanka. However, it was not until March of 2010 that a decision
was made in relation to his application. By this time, the war in Sri Lanka had
ended.
[13]
In
assessing his PRRA application, the Officer looked at current information with
respect to the situation facing Tamils in Sri Lanka. While Mr. Gunaratnam does
not dispute that the information consulted by the Officer was publicly
available information, he says that fairness required the Officer to draw this
information to his attention and to give him an opportunity to respond to it.
[14]
Mr.
Gunaratnam accepts that Officers are not generally required to provide PRRA
applicants with general country condition information otherwise available in
documentation centres: Mancia v. Canada (Minister of Citizenship and Immigration),
[1998] 3 F.C. 461, [1998] F.C.J. No. 565 (C.A.), at para. 22.
[15]
However,
he points out that the Federal Court of Appeal also stated in Mancia
that where an officer is going to rely on evidence that is either not normally
found in documentation centres, or was not available at the time that the
applicant filed his or her submissions, then “fairness dictates that the
applicant be informed of any novel and significant information which evidences
a change in the general country conditions that may affect the disposition of
the case”: at para. 22.
[16]
According
to Mr. Gunaratnam, documentary evidence with respect to the end of the civil
war in Sri Lanka constituted “novel and significant information” that clearly
had an impact on the outcome of his application. This information was not
available to him at the time that he filed his PRRA application in 2008. As a
result, fairness required that he be given the documents and afforded an
opportunity to respond.
[17]
The
respondent argues that Mr. Gunaratnam had provided updated submissions in
August of 2009, and that he had the opportunity to address the evolving
situation in Sri Lanka if he wanted to do so. With respect, the PRRA Officer
either had a duty to disclose the new country condition information or the Officer
did not. The fact that Mr. Gunaratnam chose to make updated submissions did not
change the content of the duty of fairness owed to him. Moreover, much of the
evidence relied upon by the Officer post-dated August of 2009.
[18]
Several
of my colleagues have looked at whether fairness requires that PRRA Officers
disclose documentary information dealing with the changes occurring in Sri
Lanka at the end of the civil war.
[19]
In Pathmanathan
v. Canada (Minister of Citizenship and Immigration), [2010] 3 F.C.R. 395, Justice
Kelen held that the “shift of Sri Lanka from a country embroiled in a decades
long Civil War to normalcy [was] a significant and novel change in country
conditions” As a consequence, he was of the view that “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” : both quotes from para. 34. The failure of the
Officer to do so constituted a breach of the duty of fairness.
[20]
The
respondent says that Pathmanathan is distinguishable from the present
case. According to the respondent, the undisclosed document in Pathmanathan
was a decision of the United Kingdom Asylum and Immigration Tribunal, whereas
the document relied upon by the PRRA Officer in this case was a UK Home Office
Report, “a more general and well-known document”.
[21]
However,
it is evident from Justice Kelen’s reasons that fairness required the
disclosure of documents produced after the applicant’s updated submissions
which showed changes in the general country conditions that affect the PRRA
decision: at para. 32. This included not just the British decision, but three
publicly available BBC articles as well.
[22]
Similarly,
in Mahendran v. Canada (Minister of Citizenship and Immigration), 2009
FC 1236, [2009] F.C.J. No. 1554, Justice Beaudry found that a PRRA applicant
was denied procedural fairness when the Officer relied on recent documentary
evidence with respect to the conditions in Sri Lanka, without first giving the
applicant an opportunity to comment on the document in question.
[23]
In
Justice Beaudry’s view, the documents in issue were not merely updated versions
of reports submitted by the claimants, but rather showed a significant change
in the situation in Sri Lanka: at para. 17.
[24]
The
respondent argues that Mahendran is distinguishable from this case, as
the document in issue before Justice Beaudry was a BBC News country profile.
According to the respondent, this document is “not as notorious or well-known
as country condition reports originating from the UK Home Office”. Indeed, in Nallathamby
v. Canada (Minister of Citizenship and Immigration), 2010 FC 1131, [2010]
F.C.J. No. 1405, Justice Zinn found that fairness did not require the
disclosure of a UK Home Office Report.
[25]
However,
a review of the PRRA decision in Mr. Gunaratnam’s case reveals that the Officer
considered the 2010 version of the BBC News country profile referred to in Mahendran
as well as the UK Home Office document quoted extensively in the decision. The
Officer also consulted several other documents that post-dated Mr. Gunaratnam’s
last set of PRRA submissions.
[26]
The
situation in Sri Lanka has been volatile for years. Clearly there was no duty
on PRRA officers to disclose updated publicly-available documents that showed
minor escalations or de-escalations in the hostilities over time. However, the
developments in the civil war that occurred in 2009 were clearly new, major and
significant as they related to the risk to Tamils in that country.
[27]
As
the Federal Court of Appeal observed in Mancia, fairness requires that
applicants be informed of any novel and significant information which evidences
a change in the general country conditions that may affect the disposition of
the case. That was clearly the situation here.
[28]
As a
result, I am satisfied that Mr. Gunaratnam was denied procedural fairness in
the PRRA process. Consequently, the application for judicial review will be
allowed.
Certification
[29]
Mr.
Gunaratnam proposes the following questions for certification:
1) Does the concept of “novel and
significant information which evidences a change in the general country
conditions that may affect the disposition of the case” in the reasoning of the
Court of Appeal in Mancia v Minister of Citizenship & Immigration,
[1998] 3 F.C. 461: [1998] F.C.J. No. 565 signify ‘new’ and significant
information, which covers the information considered by the officer in this case
without notice to the Applicant, or does it signify solely ‘unusual’ and
significant, which would not cover the new information considered by the
officer?
2) Where a PRRA application has been
outstanding for an extended time, when an officer is about to make a decision
and there have been significant changes in the country whose human rights
record is under consideration, does fairness require that the officer advise an
applicant of the new, current reports and articles which will be taken into
account in reaching a decision, or is the applicant responsible for regularly
updating the officer about new information relating to conditions in the home
country?
[30]
I
agree with the respondent that these are not appropriate questions for
certification. The Federal Court of Appeal has already clearly identified the
principles to be applied in determining whether fairness requires that
extrinsic evidence be disclosed to a PRRA applicant in Mancia. Whether a
specific document had to be disclosed to a particular applicant in a given case
is a fact-specific inquiry, and does not raise a question of general
importance.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that:
1. This
application for judicial review is allowed, and the matter is remitted to a
different PRRA Officer for re-determination in accordance with these reasons;
and
2. No serious question of
general importance is certified.
“Anne
Mactavish
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