Date: 20070501
Docket: IMM-2985-06
Citation: 2007 FC 443
BETWEEN:
VELAUTHAPILLAI VIDNUSINGAM,
Thavamany VELAUTHAPILLAI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondents
REASONS FOR JUDGMENT
Pinard
J.
[1]
This
is an application for judicial review of the decision of a Pre-Removal Risk
Assessment (PRRA) Officer (the “Officer”), dated May 1, 2006, wherein the
Officer determined that the applicants would not be subject to risk of
persecution, danger of torture, risk to life or risk of cruel and unusual
treatment or punishment if returned to their country of nationality, Sri Lanka.
[2]
The
applicants are husband and wife, aged 67 and 61 respectively, and are both
Tamils from Sri
Lanka.
Velauthapillai Vidnusingam, the husband, is the principal applicant and his
wife’s claim is based on his.
[3]
The
applicants identified the following risks: risk of arrest, torture and
detention by the army and the Liberation Tigers of Tamil Eelam (LTTE), as well
as risk of extortion by the LTTE. The Officer found that the documents
submitted by the applicants only outlined the general conditions in Sri Lanka
and did not address the risks the applicants would personally face if they
returned to Sri
Lanka.
[4]
The
Officer referred to a number of the conclusions of the Refugee Division of the
Immigration and Refugee Board (the Board), specifically that the applicant had
been harassed over the last several years but that the harassment did not
amount to persecution. The Board had also concluded that the alleged detention
and beating of 2000 had not occurred and that the applicants, being relatively
older people, did not fit the profile of people in the North of Sri Lanka who
face the most difficulties from the LTTE and the army.
[5]
The
Officer reviewed the documentary evidence and highlighted the following
findings:
i.
Despite
recent incidents between the LTTE and the army, the ceasefire of 2002 is still
holding and there was no indication that the country would return to war.
ii.
Although
serious problems still exist, particularly in the north and the east, the
government generally respected human rights and various avenues of recourse
were available for victims.
iii.
A high
number of Tamils continue to be arrested in Colombo but those most at risk are young Tamils
who have recently travelled from the north and east. In the north-east, Tamils
continue to be detained and to go missing but those most at risk are young
Tamil men accused or suspected of belonging to, collaborating with aiding or
sympathizing with the LTTE.
iv.
Tamils continue
to be murdered and abducted throughout the country but the victims seem to be
outspoken members of the Tamil community, such as LTTE opponents.
v.
Sri
Lankans returning from abroad are generally questioned but there is no evidence
of arbitrary detentions or torture.
[6]
Based
on this evidence, the Officer concluded that the country conditions had not
significantly deteriorated since the applicants’ refugee hearing.
[7]
The
Officer also determined that there was no objective documentary evidence to
support the applicant’s contention that he would be targeted by the LTTE or the
army and concluded it was unlikely the LTTE would still be interested in the
applicants after six years.
[8]
The
Officer also held that state protection was available.
* * * * * * *
*
[9]
At
the hearing before me, counsel for the applicants raised the following issues:
- Did the Officer breach
procedural fairness by failing to give the applicants the opportunity to
make submissions on those documents relied on by the Officer which were
only available after the applicants had submitted their PPRA application?
- Did the Officer apply the
wrong test for persecution?
- Did the Officer err in
determining that state protection was available?
Analysis
A. Opportunity to respond to new evidence
[10]
The
applicants submit that the Officer breached procedural fairness by considering
new documentary evidence without providing them the opportunity to address its content.
They submit that fairness requires disclosure of such evidence where it is
novel and significant and where the evidence may affect the decision. The
respondent suggested that the new evidence was not significant because it did
not change the Officer’s decision and refers to the Officer’s statement in
the decision that “country conditions have not significantly deteriorated since
the applicant was before the RPD.”
[11]
The
Federal Court of Appeal in Mancia v. Canada (M.C.I.), [1998] 3 F.C. 461,
held that:
[26] .
. . The fact that a document becomes available after the filing of an
applicant's submissions by no means signifies that it contains new information
or that such information is relevant information that will affect the decision.
It is only, in my view, where an immigration officer relies on a significant
post-submission document which evidences changes in the general country
conditions that may affect the decision, that the document must be communicated
to that applicant.
[12]
While
the Officer was required to consider whether the country conditions had changed
since the Board’s decision, his determination on this issue is not relevant to
the issue raised by the applicants. The applicants are concerned with whether
the new documents indicate a change in country conditions since the time when
the applicants submitted their PRRA application. Therefore, the relevant
comparison is between the country conditions in the pre-submissions documents
and those in the post-submissions documents.
[13]
In
my opinion, the post-submission documents that the Officer considered did
evidence changes in the country conditions in that they indicate an escalation in killings
of Tamils and violence in general; however, I am not persuaded that the changes
were of such significance that they affected the decision of the Officer. The
new evidence indicated an upsurge in the violence; however, the Officer found
that the applicants did not fit the profile of the people who were at risk in Sri Lanka under the
current conditions. In these circumstances, the Officer did not breach
procedural fairness by failing to disclose the new information about country
conditions to the applicants.
B. Test
for persecution
[14]
The applicants submit that the question of whether they face
persecution should have been whether there are serious grounds that they would
become known to the LTTE rather than whether it is likely that they would
become known to the LTTE, the test the applicants argue that the Officer
applied.
[15]
The
applicants are correct in stating that the test for persecution is not balance
of probabilities. A well-founded fear of persecution is anything more than a
mere possibility (Adjei v. Canada (M.E.I.), [1989] 2 F.C. 680 (C.A.)).
However, the Officer’s determination that the LTTE was unlikely to still be
interested in the applicant is only one part of the Officer’s analysis and was
not his conclusion on whether the applicants met the test for persecution.
Given that the Officer stated the correct test for section 96 in his conclusion
when he stated that “based on the totality of the evidence before me, I do not
find that there is more than a mere possibility that the applicant[s] would be
subjected to persecution as described in Section 96 of the Immigration and Refugee
Protection Act”, I find that he applied the correct test.
C. State
protection
[16]
The
applicants submit that the Officer made a perverse finding when he concluded
that if there had been a state breakdown it would have been reported by human
rights groups but failed to refer to any human rights documents.
[17]
They
also submit that the Officer erred in stating that the National Police
Commission (NPC) could protect them from the LTTE when the documentary evidence
cited by the Officer stated that the NPC deals only with police.
[18]
The
Officer found that state protection in Sri Lanka is not
perfect but that there are avenues of recourse available to the applicants
should they need protection. The Officer noted that the applicants would be
able to receive state protection from state authorities, the National Police
Commission, and the Human Rights Commission.
[19]
In
so far as the general appreciation of the facts made by the Officer is concerned,
I have not been convinced, upon reviewing the evidence, that the latter based
his decision on an erroneous finding of fact that he made in a perverse or
capricious manner or without regard for the material before him (paragraph
18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7). More
specifically, a review of the documentary evidence that was before the Officer
indicates that there are a number of places to lodge complaints about human rights
violations. In the circumstances, I cannot find that the Officer’s conclusion
with respect to state protection is patently unreasonable given the evidence
that Sri
Lanka
is making some efforts to investigate human rights abuses.
Conclusion
[20]
For
all the above reasons, the application for judicial review is dismissed.
“Yvon
Pinard”
Ottawa, Ontario
May
1, 2007
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