Docket: IMM-2211-11
Citation: 2011 FC 1371
Ottawa, Ontario, November 28,
2011
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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VIJAYATHEEPAN JEEVARATNAM
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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
application was initially brought by Vijayatheepan Jeevaratnam, a citizen of Sri Lanka, and his
five Canadian sponsors. The Applicants seek to set aside a decision of a visa
officer at the Canadian High Commission in New Delhi by which
Mr. Jeevaratnam’s claim to protection as a member of the Convention
Refugee abroad class was denied. The impugned decision was based on the visa officer’s
finding that Mr. Jeevaratnam was not in need of protection.
[2]
Mr. Jeevaratnam
challenges the decision as unreasonable. He also asserts a breach of the duty
of fairness in connection with the visa officer’s failure to consider certain
corroborating documents allegedly mailed on his behalf to the visa post. The
Respondent disputes these arguments and also argues that the sponsoring Applicants
have no standing to bring the application and should, therefore, be struck as
parties. In the result the Respondent asserts that the application was brought
beyond the 60-day requirement based on a belief that Mr. Jeevaratnam was
likely notified of the visa officer’s decision on an earlier date than the date
stated in the Notice of Application.
The Procedural Issues
[3]
The
Respondent contends that only Mr. Jeevaratnam has standing to prosecute
this application and that the other named Applicants, as his Canadian sponsors,
should be removed as parties from the proceeding. Ordinarily this result would
be of no significance to the application which would still proceed to be resolved
on the merits. But here, the Respondent contends that the application may be
out of time because the Notice of Application simply asserts that the
“applicants” were notified of the decision on February 3, 2011. According to
the Respondent, this calls into question the date on which Mr. Jeevaratnam
was notified of the decision and casts doubt about whether the Applicants filed
the application within 60 days of Mr. Jeevaratnam receiving the notice.
[4]
I
agree with the Respondent that persons who sponsor a refugee claimant have no
standing to be joined as applicants in a judicial review such as this one: see
Douze v Canada (MCI), 2010 FC 1337 at paras 14-19, [2010] FCJ no 1680
(QL). Therefore, those Applicants are struck as parties from this proceeding.
[5]
I
do not, however, accept that the application has been shown to be out of time.
The Notice of Application is regular on its face and the supporting affidavit
of Suventhirakumar Lingaratnam states that the Applicants received notice of
the decision on February 3, 2011. Counsel for the Respondent argues that it is
“unclear” when Mr. Jeevaratnam received notice of the decision. Mr. Lingaratnam
was not cross-examined on his affidavit and I am not in a position to infer
from the evidence before me that Mr. Jeevaratnam received notice of the
decision on some earlier date than the one stated.
The Fairness Issue
[6]
Mr. Boulakia
argues that the Certified Tribunal Record (CTR) is incomplete. From this, he
asserts that the visa officer misplaced materials that the Applicants claimed
to have sent to the visa post and that they were consequently overlooked. In
essence, he says that the CTR is unreliable and that an inference ought to be
drawn that the “missing” documents were sent and received and later lost. This
is an issue that must be reviewed on the basis of correctness.
[7]
I
do not accept that the CTR is incomplete. The CAIPS notes indicate that
certain materials were returned to Mr. Jeevaratnam and it is not apparent
from the record that anything else is missing. What I am left with is the bare
assertion that the Applicants sent the missing documents in a larger package to
the visa post. According to the authorities, that type of evidence is
generally insufficient to prove that documents were actually sent to a
decision-maker: see Khatra v Canada (MCI), 2010 FC 1027
at para 6, [2010] FCJ no 1291. On the evidence before me, I am not satisfied
that the allegedly missing documents were actually sent to the visa post.
[8]
Mr. Boulakia
argues, nevertheless, that the visa officer owed a duty of fairness to
Mr. Jeevaratnam as an unrepresented party to specifically record every
document that was received in order to guard against this type of problem. That
failure, he says, represents a breach of the duty of fairness. While I accept
that it is a prudent administrative practice for decision-makers to
exhaustively record the materials received and reviewed, I do not agree that
this practice is required for purposes of achieving procedural fairness. It is
open to both parties to a document transfer to list what was sent and what was received.
The fact that Mr. Jeevaratnam was unrepresented and failed to adequately
protect his interests is no reason to impose a heightened fairness obligation
on the visa officer. This fairness argument is, therefore, rejected.
The Substantive Issues
[9]
In
defending the visa officer’s decision, Mr. Bechard made a compelling
argument for a decision that could have been written and he points to several
inconsistencies in Mr. Jeevaratnam’s evidence. The visa officer
appropriately raised some of those inconsistencies during her interview of
Mr. Jeevaratnam but did not explore others. Mr. Bechard is correct
that Mr. Jeevaratnam’s evidence had enough problems to justify the
rejection of his claim. But the credibility issues that the visa officer
identified in her interview were not substantially relied upon to support the
conclusion that Mr. Jeevaratnam was not a person in need of protection.
Instead, the decision primarily rested on a foundation of plausibility findings
that are unsustainable and unreasonable.
[10]
The
principal event that Mr. Jeevaratnam relied upon to establish risk
concerned an allegation that his brother had been murdered by Sri Lankan agents
who had actually targeted Mr. Jeevaratnam. According to Mr. Jeevaratnam,
his brother’s murder was a case of mistaken identity. When the authorities
learned that they had killed the wrong person, they resumed their search for
Mr. Jeevaratnam. These events caused him to relocate and eventually to
leave Sri
Lanka.
[11]
Mr. Jeevaratnam
claimed that the Sri Lankan army was motivated to kill him because he was
perceived to be a supporter of the Liberation Tigers of Tamil Eelam (LTTE).
That perception had led to his arrest and an eight-month detention that only
ended with the assistance of a lawyer and with the payment of a bribe by his
father.
[12]
The
visa officer found this story to be implausible and expressed her concerns as
follows:
Your account of the death of your brother
does not credibly demonstrate the basis for a well-founded fear of
persecution. It is not credible that the army would detain you for eight
months and then release you upon payment of a bribe if you were considered a
member of the LTTE. Nor is it credible that the army or related groups would
then return to your home to kill you one month after your release from detention,
or that these assailants would leave after killing your brother without further
pursuing you.
Certified Tribunal Record at pp 2-3.
[13]
The
essential problem with this finding is that this part of Mr. Jeevaratnam’s
story was entirely plausible, at least insofar as he had recounted it.
Contrary to the visa officer’s conclusion, Mr. Jeevaratnam did not suggest
that he was perceived to be a member of the LTTE but, rather, as a supporter. At
the time of these events, when unlawful detentions and extra-judicial killings were
frequent, there is nothing implausible about a prisoner gaining release on
payment of a bribe and then being targeted for execution. Indeed, an
expectation of rational behaviour on the part of state agents allegedly
involved in bribery and murder should not form the basis of a plausibility
finding of this sort.
[14]
This
decision is further weakened by the visa officer’s failure to address the
evidence of the murder of Mr. Jeevaratnam’s brother. This event was at
the core of his claim to protection. Mr. Jeevaratnam also corroborated
the murder with documentary evidence. It is difficult to contemplate a
reasonable denial of Mr. Jeevaratnam’s claim in the absence of clear
findings about whether the murder happened and about who may have been
responsible.
[15]
There
is at least one other plausibility finding that cannot be sustained. The visa
officer noted in Mr. Jeevaratnam’s evidence that other members of his
family had not been persecuted by the army or related groups since his
departure. The visa officer found that it was not credible that Mr. Jeevaratnam’s
family would not have been pursued by the authorities by virtue of their
interest in him. This conclusion is wholly unjustified. It was Mr. Jeevaratnam
who claimed to be at risk as a perceived supporter of the LTTE and there was no
reason for the authorities to pursue his extended family once he had left Sri Lanka. In any event,
it is a dangerous practice to draw inferences on the strength of things that
did not happen, particularly in the context of a civil war.
[16]
For
the foregoing reasons, this decision is unreasonable and must be set aside.
[17]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
JUDGMENT
THIS COURT’S
JUDGMENT is that the Applicants, Selvachandiran
Tharmarajah, Ranjit Selvarajah, Gunanithy Jeegatheswaran, Sathithanantham
Kandiah and Suventhirakumar Lingaratnam are struck as parties from this
proceeding.
THIS COURT’S
FURTHER JUDGMENT is that this application for judicial review is allowed
with the matter to be redetermined on the merits by a different
decision-maker.
"R.L.
Barnes"
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