Docket: IMM-1350-11
Citation: 2011 FC 1277
Toronto, Ontario, November 10,
2011
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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GNANATHAS RAJAGOPAL
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION and THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
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Respondents
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AMENDED REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicant is a young Tamil adult male, a citizen of Sri Lanka. He left
that country and entered the United States of America where he
made certain applications not relevant here. Subsequently, he entered Canada and made a
refugee claim, but he was found to be ineligible. Thereafter, he sought
a pre-removal risk assessment (PRRA) in which he received an unfavourable
decision. It is that decision, provided in a letter dated January 21, 2011,
which is the subject of this application for judicial review. For the reasons
that follow, I am allowing this application.
[2]
The
Applicant has raised essentially three issues:
1.
Should
the PRRA Officer have convoked a hearing?
2.
Did
the PRRA Officer apply the wrong standard in determining risk?
3.
Did
the PRRA Officer make an erroneous determination in respect of the written
evidence?
[3]
A
pre-removal risk assessment arises out of the provisions of section 97 of the Immigration
and Refugee Protection Act (IRPA), SC 2001, c 27, as amended, and requires
an assessment as to the risk to which a person may be exposed if that person
were to be returned to his or her country of origin. It is common ground that
the applicant bears the burden of adducing evidence in that respect and that
the appropriate standard to be applied by the Officer assessing that risk is
whether or not that person would face more than a mere possibility of persecution
if he or she were to be returned to their home country today.
[4]
Section
113(b) of IRPA provides that an Officer assessing such risk may hold a hearing
if, based on factors that may be found in Section 167 of the Immigration and
Refugee Protection Regulations (IRPR), SOR/2002-227, as amended, are met.
Section 167 reads:
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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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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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[5]
That
provision was considered by Justice Phelan of this Court in Tekie v Canada (MCI), 2005 FC 27,
particularly at paragraphs 15 and 16 where he determined that that provision
becomes operative where credibility is an issue which could result in a
negative PRRA decision.
[6]
Recently,
Justice Snider of this Court considered these provisions in Mosavat v Canada (MCI), 2011 FC 647,
particularly at paragraphs 7 to 14. I summarize her conclusions, which I adopt
as my own:
a.
In
considering whether the Officer should have convoked a hearing, the applicable
standard of review is reasonableness;
b.
On this
standard, the Court can only intervene if the Officer’s decision does not fall
within the range of possible, acceptable outcomes;
c.
An oral
hearing is only required if all the factors set out in section 167 of IRPR are
met;
d.
The Applicant
bears the burden of proof in PRRA applications; and
e.
Each case
must be assessed on its own particular facts.
Issues
1. Should the PRRA
Officer have convoked a hearing?
[7]
A
review of the Officer’s decision clearly indicates that the Officer was
concerned about the credibility of the Applicant’s evidence in respect of
several issues, at least one of which the Officer determined was central to the
Applicant’s case. These include:
§
The
Applicant had been inconsistent about his employment: he claimed he was a taxi
driver; but when he arrived in the USA,
he told airport officials he worked in the pharmaceutical business. The
Applicant explained at the Pre-Screening Interview that he said that because
his father is a pharmacist. The PRRA Officer also noted that the Applicant had
not corroborated his claim of being a taxi driver other than through family
members’ statements. The Officer described this as a “central” issue.
§
The
Applicant did not adequately explain how he managed to elude checkpoints when
he fled to Colombo.
§
The
Applicant’s father’s notarized letter did not explain how he immediately knew
the Applicant had been arrested, nor does it explain how the father managed to
bribe officials to release the Applicant.
§
The
Applicant’s brother did not have any first-hand knowledge of the facts related
to the application, and therefore his affidavit was accorded little weight.
[8]
The
Officer then proceeded to refer to a document that the Officer had made of
record, a World Organization Against Torture report dated June 2010, to
conclude that, since there was no centralized list of detainees, it was
unlikely that the Applicant would be identified as having LTTE links. As Respondents’
Counsel conceded, this reference was clearly wrong. That report said that since
there was no such list, there was “increased” vulnerability of
detainees.
[9]
In
the particular circumstances of this case, the Officer, acting reasonably,
should have convoked a hearing.
2. Did the PRRA Officer
apply the wrong standard in determining risk?
[10]
As
previously stated, the correct standard is whether or not the person would face
more than a mere possibility of persecution if he or she were to be returned to
their home country. The Officer states this standard in the Conclusion of the
decision at issue.
[11]
However,
in the Officer’s analysis under the heading Risk to Failed Asylum Seekers,
and again in the subsequent heading General Country Conditions: Risk to
Young Tamil Males just preceding the Officer’s Conclusion, the Officer
finds that the applicant “would not be at particular risk”. This is not the
standard.
[12]
Therefore,
from the reasons, it is not clear whether inconsistent or wrong standards were
applied. The matter should be redetermined applying the correct standard.
Conclusion
[13]
The
matter is returned for redetermination by a different Officer applying the
correct standard and with a hearing. Both Counsel agreed, as do I, that there
is no question for certification.
JUDGMENT
FOR THE
REASONS PROVIDED:
THIS COURT’S JUDGMENT
is that:
1. The application is allowed.
2. The
matter is referred back for redetermination by a different Officer, who shall
hold a hearing.
3. There
is no question for certification.
4. No
Order as to costs.
“Roger
T. Hughes”
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