Date: 20070727
Docket: IMM-4763-06
Citation: 2007 FC 788
Ottawa, Ontario, July 27,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
BASKARAN SORNALINGAM
(litigation guardian
SORNAMALAR
MAHENDRALINGHAM)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant seeks judicial review of a negative PRRA decision which held that
despite his mental illness, he was not at risk if returned to Sri Lanka.
II. FACTUAL
BACKGROUND
[2]
The
Applicant is a Tamil Sri Lankan. He suffers from a mental schizo-affective
disorder. His sister acts as his litigation guardian.
[3]
There
appears to be no question that the Applicant suffers from mental illness
although the medical evidence is that the condition is in remission.
[4]
The
Refugee Protection Division (RPD) rejected his refugee claim. At that time the
Applicant, while confirming that he was schizophrenic, based his case on his
fear of being recruited by the LTTE. The RPD held that he was unlikely to be
recruited given his mental condition.
[5]
The
Applicant had an initial PRRA in which he downplayed his mental condition and
emphasized his fear of LTTE recruitment. The first PRRA was negative.
[6]
The
Applicant filed a second PRRA in which he relied on worsening country
conditions and a new fear – that when he arrives at the Sri Lanka airport, he
is at risk of behaving inappropriately due to his mental condition. As a result
of his raising suspicions at the airport, he would be questioned and might admit
falsely that he was implicated in Tamil activities. Also he claimed that
because he had no family in Sri Lanka, he might wander the
streets because he would not know to report to the police.
[7]
The
PRRA Officer found that the arguments about the danger he would face at the
airport and the problems checking in with police are not new facts.
[8]
The
Officer also isolated out the documentary evidence which was new since the
first PRRA and concluded that the evidence did not show that the Applicant
faced a personalized risk. As to a more general risk, the Officer referred to
the U.K. Home Office Report that “there was insufficient evidence that the
authorities in Sri Lanka are concerned with those individuals with
low-level support for the LTTE”. The evidence did not show that the violence
had risen to past levels. Therefore, the Applicant is at the same risk as the
entire population. It is not stated but is implied that the Applicant is at no
greater level than a low-level supporter of the LTTE.
[9]
On
a matter not directly related to this judicial review, the Applicant had an
H&C application pending and the Respondent has determined that it would not
remove the Applicant until a decision on the H&C.
III. ANALYSIS
[10]
The
standard of review for a PRRA decision has been well described, which I accept,
in Demirovic v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1284, in particular, at paragraph
23:
23. As to the appropriate standard of review to be applied to a decision of
a PRRA officer, in Kim v. Canada (Minister of Citizenship and Immigration),
[2005] F.C.J. No. 540 (T.D.) at paragraph 19, Mr. Justice Mosley, after
conducting a pragmatic and functional analysis, concluded that "the
appropriate standard of review for questions of fact should generally be patent
unreasonableness, for questions of mixed law and fact, reasonableness simpliciter,
and for questions of law, correctness". Mr. Justice Mosley also endorsed
the finding of Mr. Justice Martineau in Figurado v. Canada (Solicitor
General), [2005] F.C.J. No. 458 (T.D.) at paragraph 51, that the
appropriate standard of review for the decision of a PRRA officer is
reasonableness simpliciter when the decision is considered
"globally and as a whole". This jurisprudence was followed by Madam
Justice Layden-Stevenson in Nadarajah v. Canada (Solicitor General), [2005] F.C.J. No. 895
(T.D.) at paragraph 13. For the reasons given by my colleagues, I accept this
to be an accurate statement of the applicable standard of review.
Overall, the standard is reasonableness simpliciter
as the case is one of mixed fact and law.
[11]
The
Applicant argues that the Officer misapplied the new evidence rule contained in
s. 113(a) of the Immigration and Refugee Protection Act. However,
in my view, the Officer correctly identified that all the pertinent facts were
known previously upon which the Applicant alleges the new risk. This is not a
case of old facts in a new context which leads to a new risk.
[12]
There
is nothing in the changed conditions which suggests that the Applicant is at
any greater risk especially in view of the Home Office Report. The concern that
he would misbehave at the airport has not been shown to be a new concern – his
mental condition had been well-known in the earlier proceedings. One need only
contrast the Applicant’s grounds before the RPD and on the first PRRA of fear
of recruitment with the grounds of the second PRRA to conclude that the
Applicant raised a new argument in the second PRRA largely on old facts.
[13]
It
was reasonable for the Officer to conclude that these arguments could have been
raised before.
[14]
The
Officer took into account all the evidence of the Applicant’s mental health.
She made a reasonable assessment of the risk to the Applicant personally (the
“personalized risk”). Because there was nothing about the Applicant which would
raise his risk beyond that of the rest of the population, the Officer reached a
reasonable conclusion that he was at the same level of risk as the rest of the
Sri Lankan population.
[15]
Therefore,
despite the cogent and innovative arguments of Applicant’s counsel, this
application for judicial review will be dismissed. There is no question for
certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review will be dismissed.
“Michael
L. Phelan”
Email this Content