Date: 20081222
Docket: IMM-2733-08
Citation: 2008 FC 1405
Ottawa, Ontario, December 22, 2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
SORUBARANI SINNAIA
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Sorubarani
Sinnaia applied for judicial review of the decision of the Pre-Removal Risk
Assessment (PRRA) Officer (the Officer) on April 23, 2008, finding that she
would not be subject to risk of persecution, danger of torture, risk to life or
risk of cruel and unusual treatment or punishment pursuant to section 96 and 97
of the Immigration and Refugee Protection Act, 2001, c.27 (the
Act) if returned to Sri Lanka, her country of nationality.
BACKGROUND
[2]
The
applicant is a 62 year old Tamil widow originally from the Jaffna district in
northern Sri
Lanka.
The area is under the control of the Liberation Tigers of Tamil Eelam (LTTE). She
entered Canada accompanied
by her daughter through the United States in 2000 and made a
refugee claim. Their refugee claim was denied by the refugee panel in May
2001. The applicant then made an application under the Post-Determination
Refugee Claimant in Canada Class which was rejected in October 2001.
[3]
In
January 2003 the applicant applied for the PRRA that is the subject of this
proceeding; she was given an opportunity to make updated submissions in
September 2007. Her PRRA was rejected in April 2008. The applicant’s removal
was scheduled for July 3, 2008. She was granted a stay of removal on June 27,
2008.
DECISION UNDER REVIEW
[4]
On
April 23, 2008, the applicant’s PRRA was rejected because it was determined
that she 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 Sri
Lanka.
[5]
The
Officer noted that the determinative issues in the 2001 refugee hearing were
credibility, agents of persecution and an internal flight alternative (IFA).
The Officer noted that the refugee panel found that the claimants, the applicant
and her daughter, had family in Colombo and held that the
claimants did not fit the profile of Tamils at risk of a serious possibility of
persecution. The refugee panel had stated that unlike northern Tamils without
established relatives, Colombo was a viable internal
flight alternative (IFA) and that the claimants should take advantage of a
viable IFA in their own country.
[6]
The
Officer noted the civil war between the Sri Lankan government and the
secessionist LTTE and the escalation of the conflict in 2006 and 2007 that
resulted in the termination of a ceasefire agreement in January 2008. The LTTE
are in control in the northern and eastern provinces. The Sri Lankan Army
(SLA) has committed serious human rights violations against the Tamil population
in those provinces. Both the SLA and the LTTE conduct military operations
including shelling and aerial bombardment with total disregard for the civilian
population.
[7]
The
government is in control of the rest of Sri Lanka. The LTTE
carries out terrorist attacks or military strikes against military, political,
and strategic targets in the rest of Sri Lanka. The government has
imposed emergency regulations and security controls with which the populations
must comply. Security measures include curfews, checkpoints, roadblocks and
search operations throughout the road network and in Colombo. The Officer
noted extensively that emergency regulations and security measures had been
implemented that were applicable to all residents, including security checks
which may involve short detentions.
[8]
The
Officer noted that country documentation reports that human rights abuses in Sri Lanka are focussed
on high profile politicians, human rights advocates, prominent military
personnel, members of clergy, and young Tamil men - not on elderly widowed
Tamil women.
[9]
The Officer concluded that the applicant could have a well
founded fear of persecution if she were required to return to either of the
northern or eastern provinces. However, the Officer noted the applicant had family
in Colombo, quoting from the PRRA application – Updated Additional Submissions
prepared by counsel: “. . . the Applicant’s family has, for safety reasons,
moved to Colombo in April 2007 and has since been living there, although stay
in Colombo entails risks to Tamils.“ The Officer stated that the applicant
did not provide sufficient evidence her family experienced any particular
incidents different from the general Tamil population in Sri
Lanka. The Officer decided the applicant’s personal circumstances
were not sufficient to bring her within the meaning of either a convention
refugee or a person in need of protection.
[10]
The Officer found “that outside of the Northern and Eastern
provinces in Sri Lanka, there is less than a
mere possibility that the applicant would be subjected to persecution as
described in section 96 of IRPA.” Similarly, there were no substantial grounds
to believe that she would face a risk of torture, a risk to life, or a risk of
cruel and unusual treatment or punishment as described in paragraphs 97(a) and
(b) of IRPA.
[11]
Before the earlier stay application and now
on the record in this judicial review, is an affidavit by the lawyer who prepared
the Updated Additional Submissions, taking
responsibility for erroneously stating the applicant had family in Colombo
due to a mix-up with another immigration file.
ISSUES
The issues in this case are
as follows:
a.
Was the PRRA officer
required to identify a specific IFA and to perform a two-pronged IFA analysis?
b.
Does the incorrect
statement that the applicant’s family was in Colombo render the Officer’s
decision unreasonable or violate the Applicant’s right to procedural fairness?
STANDARD OF REVIEW
[12]
The
decisions by a PRRA officer are reviewed on the standard of reasonableness: Sounitsky
v. Canada (M.C.I.), 2008 FC 345, at para.18. Similarly, findings of fact
by a PRRA officer are reviewable on the deferential standard of reasonableness:
Yousef v. Canada (M.C.I.), 2006 FC 864.
[13]
A
decision is reasonable if justified, made in a transparent manner, and falls
within a range of acceptable outcomes which are defensible in regard to the
facts and the law. Factual findings are accorded the highest level of
deference. Dunsmuir v. New Brunswick, 2008 SCC 9,
at pars 47 – 49. Decisions ought not to be set aside unless based on “an
erroneous finding of fact that it made in a perverse or capricious manner or
without regard to the material before it.” Federal Courts Act section
18.1(4) (d); Nava v. Canada (M.C.I.), 2008 FC 706, at paras. 12, 22.
[14]
A breach
of procedural fairness does not require application of a standard of review.
The Court need only determine if the process satisfies the requirements of
procedural fairness: Sketchley v. Canada (Attorney General), 2005 FCA 404. If the
tribunal breached procedural fairness, the impugned decision will be set aside:
Hamzai v. Canada (M.C.I.), 2006 FC 1108, at para. 15.
Analysis
Was the
PRRA officer required to identify a specific IFA and to perform a two-pronged
IFA analysis?
[15]
The
applicant submits that the Officer failed to apply the two pronged test to
determine whether there was an IFA. Furthermore, the applicant submits that if the Officer
found the applicant had an IFA, the Officer failed to specify the location of
an IFA.
[16]
The
respondent submits that the Officer was not required to identify a specific IFA
in this case. The Officer found that the applicant was not required to return
to any particular area in Sri Lanka, but could return to another part of the country other than
the north or the east.
[17]
The
respondent submits that in a similar case the PRRA officer found that the
applicants would not be at risk in Sri Lanka. In Navaratnam v. Canada (Solicitor General), 2005 FC 3, at paras.
3-7, the court stated:
“In
my view, looking at the officer’s reasons as a whole and the general nature of
the applicant’s allegations, she was not obliged to arrive at definitive
conclusions about the locations where the applicants might be safe or the
reasonableness of their re-settling there. She was simply observing that some
areas might be safer than others. I can find no error on her part.”
[18]
The
respondent submits that the Officer concluded that despite the country
condition evidence of a generalized risk, the applicant did not establish a
personalized risk. The Officer found that the applicant failed to link the
documentary evidence regarding country conditions in Sri Lanka to her personalized,
forward-looking risk.
[19]
The
respondent submits that the Officer undertook a thorough review of the most
recent documentary evidence and did not find a personalized risk. The
applicant failed to rebut the presumption that the Officer considered all the
evidence in the record. The respondent submits that the Officer is not
required to refer to or address particular passages in the evidence when
rendering a decision.
[20]
The Officer
concluded that the evidence did not support that elderly widowed Tamil women
are at particular risk. He reviewed the country document on the conflict
between the Government of Sri Lanka and the LTTE. He noted the two decade old
conflict has resulted in the deaths of more than 60,000 people and has
escalated in 2006 and 2007 with most of the fighting taking place in the
northern and eastern districts of Sri Lanka. The Officer stated:
The aforementioned documentary sources suggest that the
conditions in the Northern and Eastern provinces of Sri Lanka are dire; this evidence leads me to
conclude that the applicant could have a well-founded fear of persecution
pursuant to section 96 of the IRPA if she were required to return to one
of these two provinces.
I take from the Officer’s conclusion he
accepts that the applicant cannot return to her home community of Jaffna in northern Sri Lanka because of
risk of persecution.
[21]
The
Officer must apply the two pronged test to find a viable and safe IFA exists
for the applicant: Rasaratnam v. Canada (M.E.I.), [1991] F.C.J.
No. 1256, (CA). The Officer must be satisfied on the
balance of probabilities that there is no serious possibility of the applicant
being persecuted in the proposed IFA and conditions in the proposed IFA must be
such that it would not be unreasonable for the applicant to seek refuge there
upon consideration of all circumstances, including the applicant’s personal
circumstances: Kumar v. Canada (M.C.I.), 2004 FC 601.
[22]
The
Officer, after considering country conditions in the rest of Sri Lanka, states:
Based on the totality of the evidence before me, in light of
the evidence submitted, the documentary sources consulted, and the specific
circumstances of the applicant’s case, I find that outside of the Northern and
Eastern provinces in Sri
Lanka, there is
less than a mere possibility that the applicant would be subjected to
persecution as described in section 96 of the IRPA.
[23]
Without
expressly saying so, the Officer appears to have decided on the basis of an IFA
since he has found the applicant cannot return to Jaffna in northern Sri Lanka.
[24]
While
the Officer has not specified a specific location as an IFA, I find that the Officer
considered Colombo as a
specific IFA. I do so because of the Officer took specific note of the refugee
panel’s finding the applicant had family in Colombo and quoted from the PRRA
submission that the applicant’s family had moved to Colombo in 2007 for safety
reasons.
Does the erroneous statement that the
applicant’s family was in Colombo render the Officer’s decision unreasonable or
violate the Applicant’s right to procedural fairness?
[25]
In
Kumar at para. 17, Justice Mosley held that the specific location
identified must be real and attainable: also Whenu v. Canada (M.C.I.),
2003 FC 1041, at paras. 9-12
[26]
The
Officer is required to assess the applicant’s particular circumstances; age,
prior experience, location and physical condition are factors that may be taken
into account: Sinnasamy v. Canada (M.C.I.), 2008 FC 67,
paras. 24-26. In Rudi v. Canada (M.C.I.), 2003 FC 957, Justice
Layden-Stevenson held:
Regarding the IFA finding, identification
of an IFA generally is insufficient. A specified geographic location must be
identified where conditions are such as to make it a realistic and attainable
safe haven.
[27]
The
Officer noted that the applicant had six siblings in Sri Lanka based on the
applicant’s PRRA application. That document gives their location as Sri Lanka and does not
locate them outside the northern or eastern provinces.
[28]
The
Officer considered Colombo to be a viable IFA for the applicant. Implicit
in the Officer’s reference to the applicant’s family having moved to Colombo for safety
reasons in 2007 is that it is a realistic and safe haven for the applicant. Since
the applicant is an elderly widow, the attainability of the proposed place of
safety is a necessary consideration.
[29]
The
difficulty with Colombo as an IFA for the applicant is that the
applicant’s previous counsel provided an affidavit admitting to making an error
about the presence of family in Colombo. The Officer relied upon the
erroneous statement, singling it out by specifically quoting it in the negative
assessment of the risk to the applicant on return to Sri Lanka.
[30]
I
pause to note this is not a situation where the applicant is alleging she had
incompetent counsel. Here, it is counsel who has acknowledged error due to a
mix up of immigration files and who is taking responsibility for the error.
[31]
The
respondent submits, according to Yang v. Canada (M.C.I.), 2008 FC 269,
at paras. 17, 24; and R. v. GDB, 2000 SCC 22, at paras. 26-29, that for
there to be a violation of procedural fairness on this issue the applicant must
establish three elements:
a.
counsel’s alleged
acts or omissions constituted incompetence;
b.
the Applicant was
prejudiced by the alleged conduct; and
c.
there was a
miscarriage of justice in the sense that, but for the alleged conduct, there is
a reasonable probability that the result of the original hearing would have
been different.
[32]
The
respondent says the applicant has not satisfied this test, as the alleged error
does not amount to incompetence; it was a mistake.
[33]
It
is worth reviewing counsel’s submissions about the applicant’s family contained
in the Updated Additional
Submissions (underlining added):
1.3 The
Applicant fears that she cannot return to and remain safely in Sri Lanka today
because of the current violent conditions in Sri Lanka
and the serious threats and risks which Tamils face in Sri
Lanka, as explained below. The fact that she is a widow and has
no family or friends in Sri Lanka
renders her position more vulnerable.
4.7 As
mentioned above, the Applicant’s family has, for safety reasons, moved to Colombo
in April 2007 and has been living there, although stay in Colombo
entails risks to Tamils.
5. In the
light of current violent conditions in Sri Lanka and serious human rights
abuses and atrocities perpetuated by the military and paramilitary groups
against Tamil civilians in Sri Lanka, I submit that if the Applicant is obliged
to return to Sri Lanka, as a Tamil female she will suffer irreparable harm at
the hands of the different agents of violence identified above. Her personal circumstances
as a widow without any family or friends in Sri Lanka renders
her more vulnerable in the current critical situation.
[34]
These
contradictory assertions in the Updated Additional Submissions support the lawyer’s
affidavit that the statement the applicant had family in Colombo was indeed in error.
[35]
In
Yang, at para. 18, Deputy Judge Frenette went on to say that incompetence
is determined by analysing whether the conduct “fell within the wide range of
reasonable professional assistance.” The misstatement of crucial information because
of a mix up of immigration files may be an honest mistake but it is not
reasonable professional assistance.
[36]
The Officer quoted
the erroneous information emphasizing its significance. The implication is
that since the applicant has family in Colombo, she will be
able to obtain family assistance in settling there. Since her submission is
that she has no family to provide assistance, the use made of the erroneous
information was prejudicial to her position and resulted in a PRRA assessment
based on an erroneous statement.
[37]
The
Officer began with the refugee panel’s finding of family in Colombo. The panel
stated: “Unlike Northern Tamils without established relatives, Colombo is a viable
option.” (underlining added) Had the Officer not relied upon the erroneous
statement by the applicant’s previous counsel, the Officer may well have come
to a different conclusion about whether an elderly widow without family in Colombo had a viable
IFA in Sri
Lanka.
CONCLUSION
[38]
I
conclude that the Officer was required to apply the two pronged test which
included identifying a specific IFA and assessing whether the proposed IFA was
unreasonable having regard to the applicant’s circumstances. The Officer did,
by implication, identify Colombo as an IFA but his
assessment was based on an erroneous statement. The Officer relied on this
error in deciding the risk assessment.
[39]
A
PRRA decision that is based on erroneous statement of fact is unreasonable.
The application for judicial review is granted.
[40]
Neither
the applicant nor the respondent submitted a general question of importance for
certification
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The
application for judicial review is allowed and the matter is to be referred to
another Officer for re-determination.
2. No question of
general importance is certified.
“Leonard S. Mandamin”
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