Date: 20110531
Docket: IMM-3000-10
Citation: 2011
FC 633
Ottawa, Ontario,
May 31, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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LESLIE ROSHAN DIVAKARAN
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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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Docket: IMM-3003-10
AND
BETWEEN:
LESLIE ROSHAN DIVAKARAN
Applicant
And
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act), for judicial review of two
decisions by a pre-removal risk assessment officer (the officer), dated April
14, 2010, wherein the officer refused the applicant’s application under subsection
25(1) of the Act to have his application for permanent residence processed from
within Canada on humanitarian and compassionate (H&C) grounds and also
wherein the officer determined that the applicant would not be subject to risk
of persecution, torture, risk to life or risk of cruel and unusual treatment or
punishment, if he returned to Sri Lanka.
[2]
The
applicant requests an order setting aside the decisions of the officer and
remitting the matter back for redetermination by a different officer.
Background
[3]
Leslie
Roshan Divakaran (the applicant) is a citizen of Sri Lanka who arrived in Canada on December 12, 2004
and claimed refugee protection.
[4]
The
applicant is a Tamil male from northern Sri Lanka. Before the Immigration and Refugee Board,
Refugee Protection Division (the Board), the applicant alleged that he was
forced to work for the Liberation Tigers of Tamil Eelam (LTTE) in the 1990s and
was questioned by the army for his role in working with the LTTE. He also
alleged being arrested, detained and beaten by the army in 2000 and that he was
sought by the LTTE in March 2004.
[5]
The
Board denied the applicant’s refugee claim in August 2006. The Board found that
he had failed to establish the well foundedness of his fear or that he was ever
detained.
[6]
The
applicant then filed H&C and pre-removal risk assessment (PRRA)
applications. He received negative decisions for these applications on April
14, 2010.
Officer’s Decisions
Pre-Removal Risk
Assessment (PRRA)
[7]
The
officer first reviewed the Board’s decision and noted that the Board found
credibility to be a determinative issue.
[8]
The
officer acknowledged the applicant’s alleged risks as a Tamil, including
needing permission to reside in Colombo and facing daily difficulties living in
Jaffna.
[9]
The
officer’s principal concern was the lack of sufficient evidence. The officer
found that there was insufficient evidence:
(a)
that
the applicant had previously been targeted by the state, the LTTE or other
non-state agents in Sri Lanka;
(b) that the
applicant would likely be targeted if he returned to Sri Lanka;
(c)
that
the authorities have an interest in the applicant or that his whereabouts is
being sought;
(d) that the LTTE
have the resources or desire to target the applicant after their defeat by the
Sri Lankan government forces; and
(e)
that
due to being out of the country for several years, the applicant will be
detained and questioned or of interest to either the authorities or
paramilitaries, or that he would be suspected of having LTTE links by the
government for the same reason.
[10]
The
officer found that the applicant may face risk of being extorted upon return to
Sri
Lanka,
but concluded that the evidence does not indicate that this is a regular
occurrence or that these requests for money are linked to a persecutory crime.
The officer did not find this to amount to persecution.
[11]
The
officer ultimately concluded that there is not more than a mere possibility
that the applicant would face persecution or risk to life or cruel and unusual
punishment.
H&C Application
[12]
The
same officer considered the applicant’s H&C application. The officer’s
assessment of risk was similar to that done under the PRRA application.
[13]
The
officer found that any discrimination and harassment that the applicant would
face as an ethnic Tamil would not rise to a level to constitute unusual or
disproportionate hardship. The officer noted that the applicant may have to
register if living in Colombo, but found that the
applicant could live in Jaffna with his parents-in-law and found that
there was insufficient evidence that his parents-in-law would be targeted by
the authorities or paramilitaries if he did so. The officer accepted that the
applicant might have to go through security checkpoints and register with the
police, if he returned to Jaffna, but found that this did not amount to
unusual or disproportionate hardship.
[14]
The
officer found that although the applicant might be subjected to extortion
demands, he was not satisfied that the applicant would be identified as a
wealthy businessman and did not find that this factor alone warranted
exceptional in-Canada processing.
[15]
The
officer considered the applicant’s employment and marriage but concluded that
these factors did not amount to establishment in Canada such that he would
suffer unusual, undeserved or disproportionate hardship if he had to apply for
permanent residence from outside of Canada.
Issues
[16]
The
issues are as follows:
1. What is the
appropriate standard of review?
2. Did the officer fail
to consider cumulative persecution in the PRRA application?
3. Did the officer err
in finding that the applicant would not face persecution if subjected to
extortion?
Applicant’s Written
Submissions
[17]
The
applicant submits that the officer also failed to consider the effect of
cumulative persecution. The United Nations High Commissioner for Refugees
(UNHCR) has noted that Tamil males from northern Sri Lanka may be
subject to persecution on cumulative grounds. The applicant relies on Ozen v
Canada (Minister of
Citizenship and Immigration), 2002 FCT 521 in which Madam Justice Eleanor
Dawson allowed a judicial review where the Board had examined five individual
acts of discrimination but failed to assess their cumulative effect on the
applicant. The applicant in the case at bar submits that in the H&C decision,
the officer accepted that the applicant would be subjected to extortion demands
and would face security constraints, police checks and be forced to register
with the police in Colombo. However, the officer did not acknowledge all of
these risks in the PRRA decision and therefore, did not assess the possibility
of cumulative discrimination in the PRRA decision.
[18]
The
applicant further submits that the officer erred in finding that being subject
to the opportunistic crime of extortion is not persecution or undue hardship.
Respondent’s Written
Submissions
[19]
The
respondent submits that the officer did consider cumulative persecution. The
officer explicitly stated in the H&C decision that he considered the claim
both “individually and cumulatively”. While the officer did not make such an
explicit statement in the PRRA application, this was unnecessary as there was
only evidence of one action which could be found discriminatory. As such, a
cumulative persecution analysis was not required. The case law relied on by the
applicant, on cumulative persecution, is not persuasive as it relates to
instances where the evidence established a series of discriminatory actions,
which is not the case here.
[20]
Although
the officer accepted that the applicant could be approached for bribes at the
airport, the officer found that that this did not amount to persecution or
undue hardship because it is only a possibility, it occurs to all Sri Lankans
and it is not linked to a persecutory act. In the H&C decision, the officer
was not persuaded that the applicant would be identified as a wealthy
individual. This conclusion was reasonable based on the evidence.
Analysis and Decision
[21]
Issue
1
What is the
appropriate standard of review?
As I held in Hnatusko
v Canada (Minister of Citizenship and Immigration), 2010 FC 18 at
paragraphs 25 and 26, findings of an officer deciding an H&C or PRRA
application involve determinations of mixed fact and law and are generally afforded
deference by this Court.
[22]
Any
issues of procedural fairness involving a PRRA officer, however, will be
determined on the correctness standard (see Parshottam v Canada (Minister
of Citizenship and Immigration), 2008 FCA 355, [2009] 3 FCR 527; Khosa
v Canada (Minister of Citizenship and Immigration), 2009 SCC
12 at paragraph 43).
[23]
Issue 2
Did the officer fail to
consider cumulative persecution in the PRRA application?
The Federal
Court of Appeal and this Court have both held that a series of discriminatory
events which individually do not give rise to persecution, may amount to
persecution when considered cumulatively (see Retnem v Canada (Minister of Employment and
Immigration)
(1991), 132 NR 53 (FCA); Ampong v Canada (Minister of
Citizenship and Immigration), 2010 FC 35 at paragraph 42).
[24]
The
respondent submits that in the PRRA application, the officer only found
sufficient evidence to support the risk that the applicant may be subject to
extortion at the airport and that this one incident cannot create cumulative
persecution.
[25]
I
find that the officer failed to consider cumulative persecution. For example,
in the H&C decision, the officer accepted that the applicant may have to
register with police and may be questioned by state security agencies if he
wishes to reside in Colombo, or, if he resides in Jaffna, the
applicant might be required to proceed through security checkpoints and
register with the police.
[26]
These
findings of fact were absent from the PRRA decision. As both decisions were
made on the same day by the same officer, these findings should have formed
part of the PRRA decision and the officer should have assessed whether the
applicant would face more than a mere possibility of persecution on the basis
of these discriminatory actions.
[27]
I
cannot know whether the officer would have found cumulative persecution in the
PRRA analysis had he considered these other discriminatory events.
[28]
As
such, based on the errors of law above, I must allow the judicial review for
both the PRRA and H&C applications. If the PRRA is faulty, then the same
would follow for the H&C.
[29]
Because
of my finding, I need not deal with the remaining issue.
[30]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[31]
IT IS ORDERED
that the
application for judicial review is allowed, the decisions of the officer are
set aside and the matter referred to a different officer for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee
Protection Act, SC 2001 c 27
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72. (1)
Judicial review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to that
country.
97. (1) A
person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.(1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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