Date: 20110628
Docket: IMM-6211-10
Citation: 2011 FC 788
Ottawa, Ontario, June 28, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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S. K.
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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]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) of the decision made
on October 4, 2010, by a Pre-Removal Risk Assessment (“PRRA”) officer, refusing
the applicant’s PRRA application.
BACKGROUND
[2]
The
applicant is a 41-year-old male, Sri Lankan citizen of Tamil ethnicity. He
arrived in Canada on July 8,
2007 and made a claim for refugee protection shortly after his arrival. He was
subsequently referred to the Immigration Division for an admissibility review
which was heard on December 9, 2009 and February, 11, 2010.
[3]
On
April 16, 2010, the applicant was found to be inadmissible under paragraph 34(1)(f)
of the IRPA for membership in a terrorist organization. This finding was based
on the applicant’s wife’s story, accepted by the Immigration and Refugee Board,
that her husband was a full-time member of the LTTE from 1988 until at least
2004 and went by a code name. She said he transported both people and weapons, especially
at Thundy camp, and fought on the front lines before 1996. She said he was
approved to act as a spy, was injured in the chest by shrapnel and was paid by
the LTTE. The applicant denies those allegations.
[4]
An
application for leave for judicial review of this decision was denied by the
Federal Court on September 8, 2010. The applicant’s PRRA application was
refused on October 4, 2010. On March 15, 2011, this Court stayed the applicant’s
removal to Colombo, Sri Lanka, scheduled
to take place on March 22, 2011 pending the determination of this application
for leave and for judicial review.
DECISION UNDER REVIEW
[5]
The
PRRA officer found that as part of his documentary evidence, the applicant did
not submit reports more recent than those from 2010. The officer concluded that
the evidence the applicant did submit referred to wartime conditions in Sri Lanka rather than
the more recent and well-documented post-war environment. The officer also
noted that the applicant did not provide a personal statement of his
experiences or risk in Sri Lanka, nor did he say he was
convicted or charged of crimes or wanted by the police or military in any
country.
[6]
The
officer did not accept that the applicant was detained for years by authorities
prior to coming to Canada and found the applicant failed to indicate how Canada’s
identifying him as a former member or supporter of the LTTE could be relayed to
the Sri Lankan authorities. There was no evidence from Interpol, CSIS or the
Sri Lankan government to suggest that the applicant’s name or identity were
linked to the LTTE. Finally, the officer found there was little to suggest that
the applicant has a profile that would be of interest to the authorities on
return to Sri
Lanka.
ISSUES
[7]
The
issues raised in this application are as follows:
1. Did the PRRA
officer err in considering the applicant’s risk profile?
2. Did the PRRA
officer err in concluding that the applicant would not be suspected in Sri Lanka of being an
LTTE supporter?
3. Did the PRRA
officer err in relying on Sittampalam?
ANALYSIS
Standard of Review
[8]
PRRA
officer’s decisions are to be reviewed on a standard of reasonableness: Kim
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 437, 30 Admin. L.R. (4th)
131; Perea v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1173 at paras. 22-24.
Did the PRRA officer err
in considering the applicant’s risk profile?
[9]
The
applicant submits that in examining the UNHCR’s updated Eligibility
Guidelines for Assessing International Protection Needs of Asylum-Seekers from Sri Lanka (2010), dated July
2010, the officer erred in overlooking that he has a profile identified as
being at risk. While the evidence indicates that the numbers detained in Sri Lanka by the
authorities are diminishing, there continues to be large numbers held, many of
whom are not high profile suspects.
[10]
The
officer did not ignore the risk of the applicant’s potential mistreatment as a
suspected LTTE supporter. The officer appreciated that Tamils who are suspected
supporters of the LTTE may face mistreatment if detained by the Sri Lankan
authorities and that returning failed refugee claimants are given greater
scrutiny by the criminal investigation branch. However, the officer determined
that there was no evidence suggesting that the authorities would perceive the
applicant to be an LTTE supporter, or a supporter suspected of committing
serious crimes who would be at risk of detention.
[11]
The
officer based this opinion partially on the fact that the applicant did not
provide a personal statement of his experiences or risk in Sri Lanka, indicated
that he has not ever been convicted or charged of any crimes in any country and
that he had never been wanted by police or military or any other authorities in
any country. The officer also relied on the ameliorated environment in post-war
Sri
Lanka,
as outlined in the UNHCR’s guidelines, as well as the UK Home Office
Operational Guideline Note from August 2009. These were reasonable findings
based on the facts and evidence before the officer.
[12]
The
applicant further claims that the officer erred in basing the risk assessment
on the assumption that applicant could successfully lie if questioned. To this
end, the applicant advances the case of Donboli v. Canada (Minister of
Citizenship and Immigration), 2003 FC 883, 30 Imm. L.R. (3d) 49 for the
proposition that it is not appropriate to base a risk assessment on the
assumption that the person concerned will lie successfully or be able to lie
upon being questioned. It seems clear that if the applicant discloses the
reason for the failure of his refugee claim, he will face greater scrutiny and
likely detention in Sri Lanka.
[13]
Donboli
involved
a citizen of Iran who
contended he was on a list of persons to be destroyed. He left the country
illegally and claimed refugee status based on his political opinion. The Court
held that the Board erred in law in failing to consider whether Mr. Donboli
would risk severe or extra-judicial treatment at the hands of a repressive
regime as a result of his illegal exit from the country and a failed refugee
claim.
[14]
Donboli
is
not directly applicable to the instant case, firstly because here, the
applicant did not leave the country illegally and did not submit evidence that
he was wanted by the authorities. Secondly, the Board’s error in Donboli was
only underscored by its finding that Mr. Donboli had a “good cover story”, it
was not a central error in itself. See: Rafipoor
v. Canada (Minister of Citizenship and Immigration), 2007 FC 615 at para.
19.
[15]
In
this matter, the only evidence before the Immigration Division respecting the
applicant’s alleged activities were the statements by the wife. There is no indication
that the Sri Lankan authorities would be aware of those statements as the
proceedings were confidential. The officer was clearly mindful of the fact that
the applicant would be examined upon return. It was not necessary for the
officer to speculate about what information would be gleaned from that
interview or what the applicant would choose to say.
Did
the PRRA officer err in concluding that the applicant would not be suspected in
Sri Lanka of being an LTTE supporter?
[16]
The
applicant claims the officer erred in confining this portion of the analysis to
that information which the Canadian government will disclose to Sri Lankan
authorities. Upon his return, the authorities will question him as to the
activities in which he was engaged in Sri Lanka as well as in Canada.
[17]
Although
it is reasonable to assume that the Sri Lankan authorities will question the
applicant upon re-entry, his claim that he will be seen as an LTTE supporter
and would have to lie to the border officials regarding the purpose of his
return is mere speculation. The applicant submitted no evidence to support his
assertion that he would have to discuss the particulars of his failed refugee
claim in Canada. Further,
and as noted by the officer, “[W]hile they [the Sri Lankan authorities] may
presumably be aware that the applicant filed a refugee claim, as many Tamils
and non-Tamils who spent years abroad have, there is little to indicate that
this in itself presents returnees with a risk of return”. This was a logical
conclusion.
[18]
Moreover,
the officer rightly noted that the Immigration Division hearings were private
proceedings and the decision which found the applicant to be inadmissible was
not publicly available. Nor was there any evidence from Interpol, CSIS or the
Sri Lankan government suggesting that the applicant’s name and identity are linked
to the LTTE. It was thus open to the officer to conclude that there was little
to suggest that the applicant would have a profile of interest to the
authorities on return to Sri Lanka.
Did the PRRA officer err
in relying on Sittampalam?
[19]
The
applicant argues that the officer erred in relying on Sittampalam v. Canada (Minister of
Citizenship and Immigration), 2010 FC 562, 89 Imm. L.R. (3d) 280 as
evidence of country conditions. The applicant points to Pathmanathan v. Canada (Minister of
Citizenship and Immigration), 2009 FC 885, [2010] 3 F.C.R. 395 for the
proposition that jurisprudence should not be used as evidence of country
conditions.
[20]
To
say the officer was relying on Sittampalam would be a
mischaracterization of the officer’s findings. Early in the decision the
officer provided some initial analysis on the risk to the applicant’s profile
group, those suspected of LTTE links, and then went on later to make reference
to Sittampalam. This was only to reinforce that changes in conditions
related to this group had been recognized in other recent cases. The officer
was not relying on the decision for evidence of country conditions.
[21]
The
application for judicial review will be dismissed. No questions for
certification were proposed. The applicant requested that this judgment and
reasons for judgment be anonymized by the substitution of initials for his name
in the style of cause. The respondent took no position on that request. While
the open court principle normally requires that the names of the parties be set
out in the style of cause, the courts have recognized exceptions to that
principle such as where the decision contains highly personal information or
would put a party at risk. In light of the nature of the evidence referred to
above and the conclusion reached I will agree to the applicant’s request in
this case.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1. the
application for judicial review is dismissed;
2. initials
shall be substituted for the applicant’s name in the style of cause of these
Reasons for Judgment and Judgment;
3. no questions
are certified.
“Richard
G. Mosley”
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