Date: 20110804
Docket: IMM-2348-10
Citation: 2011
FC 975
Ottawa, Ontario,
August 4, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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GNANAMALAR SIVABALASUNTHARAMPILLAI
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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 pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of a pre-removal risk assessment officer (the officer), dated August
21, 2009, wherein the officer determined that the applicant would not be
subject to risk of persecution, danger of torture, risk to life or risk of
cruel and unusual treatment if returned to Sri Lanka.
[2]
The applicant requests that the decision of the Board be set aside
and the claim remitted for redetermination by a different member of the Board.
Background
[3]
Gnanamalar
Sivabalasuntharampillai (the applicant) is a 67 year old Tamil female national
of Sri
Lanka. The
applicant has three children all residing in Canada.
[4]
The
applicant left Sri
Lanka in
December 1999 and stayed in the United Kingdom for one month before transiting
through the United
States to
claim refugee protection in Canada in January 2000.
[5]
The
applicant’s refugee claim was refused in May 2001.
[6]
The
applicant filed a pre-removal risk assessment (PRAA) application in June 2008.
Officer’s Decision
[7]
The
officer found that there was not a serious possibility that the applicant would
face a personalized and objectively identifiable risk of harm if she were
returned to Sri
Lanka.
[8]
The
officer found that the applicant had presented insufficient evidence to
substantiate her claim. While the officer noted that the applicant’s PRRA
materials were substantial, there was insufficient evidence of how the harms
indicated in the materials were connected to the applicant. The applicant
presented evidence of risk of harassment of war widows and risk of “night
violence” in rural areas, without any evidence that the applicant would reside
in rural areas or was a war widow.
[9]
The
applicant also presented evidence of general abuses by the Liberation Tigers of
Tamil Eelam (LTTE), police arrests and human rights concerns in the armed
conflict between the government forces and the LTTE. The officer found that
these documents were largely discussing conditions prior to the government
forces capturing the LTTE territories in May 2009. The officer found that the
applicant’s evidence did not support a finding of a serious possibility of risk
of harm or persecution if she were returned to Sri Lanka today.
[10]
The
officer also found that the applicant’s concerns regarding extortion and
kidnapping were speculative in nature.
[11]
Finally,
the officer found that the applicant’s failure to claim refugee asylum in the
United Kingdom or the United States did not support a finding that the
applicant has a subjective fear or persecution or risk of harm on returning to
Sri Lanka.
Issues
[12]
The
applicant submitted the following issues for consideration:
1. The PRRA officer
failed to disclose an adequate set of written reasons and failed to support all
critical findings with a clear evidentiary basis.
2. The PRRA officer
erred at law by questioning the applicant’s credibility and subjective fear of
return to Sri
Lanka
but failed to convoke an in-person interview.
Applicant’s Written Submissions
[13]
The
applicant submits that the officer did not provide an evidentiary basis in
support of the PRRA findings. The applicant is concerned that the officer did
not indicate what, if any, sources were consulted in the decision making. The
applicant submits that the officer did not note the specific passages
considered in the applicant’s materials.
[14]
The
officer stated that the document RIR LKA102249 was not provided by the
applicant. The applicant submits that this demonstrates that the officer did
not consider this document in the decision, although it originated from the
Immigration and Refugee Board.
Respondent’s Written Submissions
[15]
The
respondent submits that it was clear that the officer had considered all of the
evidence presented by the applicant and that the officer was not required to
consult external sources.
[16]
The
respondent submits that the officer did not need to consider the document RIR LKA102249
as it was dated December 2006 and concerned the LTTE’s treatment of persons
which was no longer relevant to the officer following the May 2009 defeat of
the LTTE by the government forces. In addition, the burden of proof lay with
the applicant to provide the document to the officer if she wanted it to be
considered in more detail.
[17]
The
respondent submits that the officer considered whether there was evidence of
any harassment or abuse that was sufficient to substantiate the applicant’s
claim, but found that there was not. The applicant’s allegations of harm were
speculative in nature and the officer therefore concluded that there was no
serious possibility that she would face a personal identifiable risk of harm.
Analysis and Decision
Standard of Review
[18]
Where
previous jurisprudence
has determined the standard of review applicable to a particular issue, the
reviewing court may adopt that standard (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190 at paragraph 57).
[19]
This
Court has confirmed that the standard of review which applies to the findings
of an officer deciding a PRRA application is that of reasonableness (see Hnatusko
v Canada (Minister
of Citizenship and Immigration), 2010 FC 18 at paragraphs 25 and 26). However,
any issues of procedural fairness, including the right to be heard and a lack
of adequate reasons, will be reviewed on the correctness standard (see Khosa v Canada (Minister
of Citizenship and Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 at
paragraph 43).
[20]
Issue
The PRRA
officer failed to disclose an adequate set of written reasons and failed to
support all critical findings with a clear evidentiary basis.
The officer concluded that the applicant’s
fears were generalized in nature. The officer concluded that since the war
between the LTTE and the government ended in May 2009, the applicant’s fears no
longer existed in August 2009, the date of the decision. Conditions were
different for the applicant than outlined in her documentation which was from 2006
and 2007.
[21]
I have difficulty with this
conclusion as the officer did not, in the decision, refer to any evidence to
support the conclusion. The only evidence in the record shows that the
applicant’s fears were most likely objectively grounded based on the evidence
from 2006 and 2007.
[22]
The
officer’s conclusion about conditions in August 2009 may have a basis but this
I cannot determine as the officer’s reasons do not tell me on what evidence the
officer’s conclusion was based.
[23]
As a result,
I am of the view that the officer’s reasons, in this respect, are inadequate in
that the evidentiary basis for the conclusion is not stated.
[24]
Because of
my finding on this issue, I need not deal with the remaining issue.
[25]
The
application for judicial review is therefore allowed, the decision of the
officer is set aside and the matter is referred to a different officer for
redetermination.
[26]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[27]
IT IS
ORDERED that the
application for judicial review is allowed, the decision of the officer is set
aside and the matter is 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.
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.
113. Consideration of an application for
protection shall be as follows:
. . .
(b) a hearing
may be held if the Minister, on the basis of prescribed factors, is of the
opinion that a hearing is required;
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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.
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.
113.
Il est disposé de la demande comme il suit :
. .
.
b) une
audience peut être tenue si le ministre l’estime requis compte tenu des
facteurs réglementaires;
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Immigration
and Refugee Protection Regulations, SOR/2002-227
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161.(1) A person applying for protection
may make written submissions in support of their application and for that purpose
may be assisted, at their own expense, by a barrister or solicitor or other
counsel.
(2) A person
who makes written submissions must identify the evidence presented that meets
the requirements of paragraph 113(a) of the Act and indicate how that evidence
relates to them.
167. For the purpose of determining whether
a hearing is required under paragraph 113(b) of the Act, the factors are the
following:
(a) whether
there is evidence that raises a serious issue of the applicant's credibility
and is related to the factors set out in sections 96 and 97 of the Act;
(b) whether
the evidence is central to the decision with respect to the application for
protection; and
(c) whether
the evidence, if accepted, would justify allowing the application for protection.
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161.(1)
Le demandeur peut présenter des observations écrites pour étayer sa demande
de protection et peut, à cette fin, être assisté, à ses frais, par un avocat
ou un autre conseil.
(2)
Il désigne, dans ses observations écrites, les éléments de preuve qui
satisfont aux exigences prévues à l’alinéa 113a) de la Loi et indique dans
quelle mesure ils s’appliquent dans son cas.
167.
Pour l’application de l’alinéa 113b) de la Loi, les facteurs ci-après servent
à décider si la tenue d’une audience est requise :
a) l’existence
d’éléments de preuve relatifs aux éléments mentionnés aux articles 96 et 97
de la Loi qui soulèvent une question importante en ce qui concerne la
crédibilité du demandeur;
b)
l’importance de ces éléments de preuve pour la prise de la décision relative
à la demande de protection;
c)
la question de savoir si ces éléments de preuve, à supposer qu’ils soient
admis, justifieraient que soit accordée la protection.
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