Date: 20070228
Docket: IMM-2432-06
Citation: 2007 FC 226
BETWEEN:
SUNDARALINGAM
SUTHARSAN
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing at Toronto on the 15th of February, 2007
of an application for judicial review of a decision of an Officer at the High
Commission of Canada in London, England (the “Officer”) wherein the Officer
determined the Applicant did not meet the requirements for immigration to Canada
as a member of the Convention refugee abroad class or as a member of the humanitarian-protected
persons abroad classes. The decision under review is dated the 23rd
of March, 2006.
BACKGROUND
[2]
The
Applicant presented no affidavit of his own on this application for judicial
review. The following background information is extracted from the Tribunal
record and was essentially not in dispute before the Court.
[3]
The
Applicant is a Tamil citizen of Sri Lanka, born in Pungudutivu, Jaffna region in
the north of Sri
Lanka
on the 24th of October, 1980. He is therefore now twenty-six (26)
years of age. For the greater part of his life, he lived in the north of Sri Lanka. He
relates:
Our family is from the
north. We suffered severely at the hands of the LTTE. My father was a
businessman and the LTTE demanded to contribute to their war effort. This
caused my father problems at the hands of the LTTE. He did not want to live
under the LTTE rule and moved his business to Colombo.
[4]
The
Applicant has two (2) brothers and a sister. One brother joined the LTTE in Colombo in 1999.
The Applicant alleges that this particular brother was a victim of the LTTE’s
indoctrination. The Applicant further alleges that one of the particular
brother’s friends had joined the LTTE before the brother joined and had “brainwashed”
the brother to join the LTTE. The Applicant alleges that this caused the
family problems in that the police suspected that the family members were
supporters of the LTTE and watched the family very closely.
[5]
The
Applicant alleges that in April 2000, the police came to the family home in Colombo in search of
the brother who had joined the LTTE. They did not find him. In the result,
they arrested the Applicant and detained him for about two (2) weeks. The
Applicant alleges that he was mistreated in detention. In the result, he fled Sri Lanka.
[6]
The
Applicant relates that his flight was to London, England where he
studied at the City University, from September 2000 to July 2004
when he graduated with a Bachelor of Engineering. He made a refugee claim in
the United
Kingdom
on the ground that he had a well-founded fear of persecution in Sri Lanka. His claim
was rejected in the summer of 2001. In Reasons for Refusal that appear on the
Tribunal Record, an Officer in the Home Office, Immigration and Nationality
Directorate, Integrated Casework Directorate wrote:
…
You claim that you were
subjected to torture whilst in detention, which entailed being hung upside
down, beaten and kicked. The Secretary of State is aware that people who are
suspected of having links with the LTTE risk being subjected to torture.
Tamils originally from the north and east of Sri Lanka are
especially at risk of being held for longer periods as are up-country Tamils.
The Danish Immigration Service Report, published January 1999, states that a
number of interviewees were consulted, including UNHCR, the Association for the
Protection of Tamils, the Action Group for Tamils and the Law and Society
Trust, who said that torture or other forms of maltreatment did not occur in
the course of identity checks. The Civil Rights Movement said that there had
been an improvement in the treatment of people during identity checks. If
someone is freed on bail, this will mean they are not or no longer regarded as
a serious suspect.
…
The Secretary of State
notes that you were released by the police after 17 days due to a bribe paid by
your father, he considers that the police would not have let you go so readily
if they were convinced of your involvement with the LTTE and therefore he
believes that you were not considered a serious threat by the authorities.
You state that after
your release you were harassed by your neighbours who were predominantly
Sinhalese. With regard to your claimed difficulties with your neighbours the
Secretary of State would point out that, in general, he takes the view that
such individuals cannot be regarded as ‘agents of persecution’ within the terms
of the 1951 United Nations Convention relating to the Status of Refugees.
…
[7]
In
the result, the Applicant is subject to removal from the United Kingdom back to
Sri
Lanka.
[8]
To
avoid removal to Sri Lanka, the Applicant applied for status in Canada. His
application was supported by five (5) Canadian sponsors. The rejection of his application
followed, leading to the application for judicial review that is now before the
Court.
THE DECISION UNDER
REVIEW
[9]
The
Applicant was not afforded an interview. The decision under review was arrived
at based entirely on the documentary record before the Officer.
[10]
In
the letter conveying the decision under review, the Officer wrote:
…
You said that you were
arrested by the police but not that you were ever charged with any offence.
Although you said you were ill-treated, you did not mention that you reported
this to the authorities, nor sought assistance from organizations such as the
Anti-Harassment Committee or the National Human Rights Commission. Given the
fact that you were never charged with involvement and that you were released,
this would appear to indicate that the Sri Lankan authorities were satisfied
that you did not have any involvement with the LTTE. I am therefore not
satisfied that you have reason to fear the authorities would have any interest
in you.
The cease-fire between
the LTTE and the government remains in place and, although there have been
instances where individuals were targeted by the LTTE (for instance the assassination
of the Foreign Minister Kadirgamar in August 2005), these were politically
motivated and the civilian population is not reported as being targeted. Your
situation, were you to return to Sri Lanka, would be no
more hazardous than that of any other person in that country.
Organizations such as the Sri Lanka Monitoring Mission and Amnesty
International, while concerned about the peace situation in Sri Lanka, have
acknowledged that the Government of Sri Lanka has taken steps to restore the
rule of law.
In the absence of any
reason why the Sri Lankan authorities would have any interest in you, and given
the decision of the LTTE to comply with the terms of the current cease fire,
and given the relative stability in Sri Lanka at this time, I am not satisfied
that you have a well-founded fear of persecution.
…
[emphasis
added]
It is worthy of note that the foregoing
brief analysis treats the Applicant, in the context of Sri Lanka, as all
persons in that country, not as a young Tamil from the north of Sri Lanka, one
of whose brothers has joined the Tamil Tigers. It makes no mention of the risk
that the Applicant, given his profile as a Tamil from the north, his age and
his brother’s actions, would face at the hands of the Tigers themselves.
THE APPLICABLE LAW
[11]
Subsection
12(3) of the Immigration and Refugee Protection Act (the “Act”)
provides for the selection as permanent residents, of persons who are outside
or inside Canada if they are
Convention refugees or are in similar circumstances to Convention refugees.
Section 96 of the Act defines the term “Convention refugee”. Section
145 of the Immigration and Refugee Protection Regulations
(the “Regulations”) defines the Convention refugees abroad class and
those who are members of that class. Section 146 of the Regulations defines
those who are members of the classes referred to in the decision under review
as the “Humanitarian-Protected persons abroad designated class”. Of the
classes referred to in section 146, only the “country of asylum class” is
relevant for the purposes of this matter. That class is defined in section 147
of the Regulations. Those provisions of law are set out in the Annex to
these reasons.
THE ISSUES
[12]
While
in the Memorandum of Argument filed on behalf of the Applicant, counsel
identifies
four (4) issues on this application for
judicial review, one of those issues, the failure of the Officer to address the
application of section 97 of the Immigration and Refugee Protection Act,
was abandoned before the Court. The remaining issues are: first, whether or
not the Officer erred in law in his determination of whether the Applicant met
the test for Convention refugee; second, whether the Officer erred in law in
misunderstanding the materials put before him by and on behalf of the Applicant
or in failing to address a significant element of the Applicant’s claim; and
third, whether the Officer erred in law, breached fairness or made findings of
fact perversely or capriciously or without regard to the totality of the evidence
before him. In addition, as with all applications for judicial of review such
as this, the issue of standard of review arises.
ANALYSIS
Standard of Review
[13]
It
is well established that an Officer abroad is entitled to considerable
deference on his findings of fact although, if the Officer ignores evidence or issues
before him or her, the decision may be set aside on judicial review.
Similarly, it is well established that issues of procedural fairness are
reviewable on a standard of correctness. I find nothing on the unique facts of
this matter that would justify variation from those standards.
[14]
Equally,
it is well established that, in matters such as this, errors of law are
reviewable on a standard of correctness
and, where an error arises in the application of the law to the particular
facts of a matter, the appropriate standard of review is reasonableness
simpliciter.
Error in law in relation
to the test at law under section 96 of the Act
[15]
In
the decision letter under review, the Officer concludes:
In the absence of any
reason why the Sri Lankan authorities would have any interest in you, and given
the decision of the LTTE to comply with the terms of the current cease fire,
and given the relative stability in Sri Lanka at this time, I am not satisfied
that you have a well founded fear of persecution.
With great respect, the Officer places a
heavier onus on the Applicant to establish his claim than is required by law.
In Krisnapillai v. Canada (Minister of
Citizenship and Immigration), my colleague
Justice Mosley wrote at paragraphs 9 and 10 of his reasons:
Mr. Krisnapillai submits
that the visa officer applied the wrong test for Convention refugee status when
she found “I was not satisfied that the treatment you would receive were you to
return to Sri Lanka would amount to persecution on any of the grounds enumerated
in the “Convention refugee” definition”… .
The proper test is that
of reasonable chance or good grounds that persecution will occur, not a balance
of probabilities test:… .
[citations
omitted]
Here, the Officer has imposed on the
Applicant an onus to satisfy him that the Applicant has a well-founded
fear of persecution rather than an onus to establish that there is a reasonable
chance or good
grounds to believe that the Applicant will
suffer persecution. I am satisfied that the Applicant is entitled to succeed
on this application for judicial review on that ground alone.
Misunderstanding
material elements of the Applicant’s claim
[16]
In
material placed before the Officer by the Applicant, in response to a question
“Will you be able to return to your home country?, the Applicant indicates “no”
and explains his position in part in the following terms:
…If war breaks out, that
[sic] I would be targeted by the army on suspicion of being a supporter of the
LTTE. I fear that I will be arrested and subjected to unusual treatment. Also,
I fear that I will be forced to by the LTTE to join their cadres in their war
efforts.
[emphasis
added]
At page 39 of the Tribunal Record, in the
same documentation, the Applicant writes:
They (the LTTE) kill
people who oppose them. They extort money. They have extorted money from my
parents in Colombo. The plight
of Tamils is such that they can enjoy human rights only to the extent the LTTE
has allowed. No one dare to oppose the LTTE even at the time LTTE target
them. (I have attached documents to show how the Tamils have lost their human
rights due to the LTTE domination).
In the same material, the
Applicant writes:
…Both the Government and
the LTTE are preparing for war. LTTE is recruiting fighters and training
them. As a youth, I will be subjected to forceful conscription by them. I
cannot defy the orders of the LTTE. If I do, I will be arrested and detained
and put into hardship by them. The authorities will not be able to protect me
as they are powerless in the areas controlled by the LTTE.
[17]
In
the decision letter under review, the Officer completely ignores the risk to
the Applicant at the hands of the Tamil Tigers and in so doing ignores evidence
before him. Once again, I am satisfied this ignoring of evidence constitutes a
reviewable error.
Whether the Officer
otherwise Erred in Law, Breached Fairness or Made Findings of Fact Perversely
or Capriciously or Without Regard to the Totality of the Evidence
[18]
In
light of my findings on the foregoing issues, I will not address this issue
except to say that, against the appropriate standards of review, I find no
other reviewable error in the decision under review. Counsel for the Applicant
did not pursue failure to provide an interview as an issue. I agree that the
failure to provide an interview would not, of itself, be determinative. That
being said, on the particular facts of this matter, where the Applicant was, at
all relevant times, in London, England or its environs, and the decision was
made there, it might well have constituted a wise investment, in the interest
of both parties, for an interview to have been provided.
CONCLUSION
[19]
Based
on the forgoing brief analysis, this application for judicial review will be
allowed, the decision under review will be set aside and the matter will be
referred back to the Respondent for reconsideration and re-determination by a
different Officer.
CERTIFICATION OF A
QUESTION
[20]
At
the close of the hearing of this matter, I advised counsel that this
application for judicial review would be allowed. Neither counsel recommended
certification of a question. The Court itself is satisfied that no serious
question of general importance arises out of this matter.
“Frederick E. Gibson”
Ottawa, Ontario
February
28, 2007
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