Date: 20071023
Docket: IMM-4805-06
Citation: 2007 FC 2001
Toronto, Ontario, October 23,
2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
VIBULARAJ
KANAGARAJAH
Applicant
and
MINISTER
CITIZENSHIP AND IMMIGRATION
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant is an adult single male Tamil. He is a citizen of Sri Lanka who entered Canada as a landed
immigrant in 1995 together with other members of his family. On June 21, 2006,
he was ordered deported due to criminality. A pre-removal risk assessment
(PRRA) was made and on August 18, 2006, a Pre-Removal Risk Assessment Officer
gave written decision in which it was determined that the Applicant would not
be subject to risk if removed to Sri Lanka. It is this decision
that is the subject of this judicial review proceeding.
[2]
For
the reasons that follow, I find that the application is dismissed. There is no
question for certification. There is no Order as to costs.
[3]
The
issues raised by Applicant’s Counsel in this application are entirely fact
driven. As stated in paragraph 2 of the Applicants memorandum, the issues
raised are:
2. It is respectfully
submitted that there are two issues in this Application, the particulars of
which are as follows:
(a) The Board erred at law by
failing to provide a clear evidentiary basis for critical findings. These
findings, therefore, amount to nothing more than sheer speculation on the part
of the respondent.
(b) The Board erred at law by
conducting a highly selective analysis of the objective documentary evidence
concerning the risk to the applicant in Sri Lanka, and by perversely ignoring supportive
of the applicant’s fear.
[4]
The
type of review sought by the Applicant requires that he Court be guided by two
factors. One is that as set out by the Supreme Court of Canada in Suresh v.
Canada (MCI) [2003] 1 S.C.R. 3 at paragraph 39 that the Court is not to reweigh
the evidence and can only intervene if a finding of the Board is not supported
by the evidence or if appropriate factors have not been considered:
39 This brings us to the
question of the standard of review of the Minister's decision on whether the
refugee faces a substantial risk of torture upon deportation. This question is
characterized as constitutional by Robertson J.A., to the extent that the
Minister's decision to deport to torture must ultimately conform to s. 7 of the
Charter: see Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, per La Forest J.; and United States
v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7, at para. 32. As mentioned earlier, whether
there is a substantial risk of torture if Suresh is deported is a threshold
question. The threshold question here is in large part a fact-driven inquiry.
It requires consideration of the human rights record of the home state, the
personal risk faced by the claimant, any assurances that the claimant will not
be tortured and their worth and, in that respect, the ability of the home state
to control its own security forces, and more. It may also involve a
reassessment of the refugee's initial claim and a determination of whether a
third country is willing to accept the refugee. Such issues are largely outside
the realm of expertise of reviewing courts and possess a negligible legal
dimension. We are accordingly of the view that the threshold finding of whether
Suresh faces a substantial risk of torture, as an aspect of the larger s.
53(1)(b) opinion, attracts deference by the reviewing court to the Minister's
decision. The court may not reweigh the factors considered by the Minister, but
may intervene if the decision is not supported by the evidence or fails to
consider the appropriate factors. It must be recognized that the nature of the
evidence required may be limited by the nature of the inquiry. This is
consistent with the reasoning of this Court in Kindler, supra, at pp. 836-37,
where considerable deference was shown to ministerial decisions involving
similar considerations in the context of a constitutional revision, [page29]
that is in the context of a decision where the s. 7 interest was engaged.
[5]
The
second is that established by the Supreme Court of Canada in Boulis v.
Canada (MCI), [1974] S.C.R. 875 at page 885 that the reasons given by the
Board are not to be examined microscopically, it is enough to show a grasp of
the issues and the evidence them without requiring detailed references.
[6]
In
the present case, in addition to completion of the standard form, the PRRA officer
provided over four pages of detailed reasons, indicating that the materials
provided by the Applicant’s counsel had been considered and that other publicly
available materials which have been itemized by the officer as having been
considered.
[7]
Applicant’s
counsel raised a number of arguments, only two of which require particular
discussion. The first is whether the PRRA Officer gave sufficient
consideration to the Applicant’s concern that he could be targeted by the army
or police were be to return to Sri Lanka. The officer stated at
pages 5-6 of her reasons:
“While the country research
indicates that the Sri Lankan authorities do on occasion examine Tamil
citizens, I find that this is in the interest of state security and I am not
persuaded that there is persecution. Moreover, the applicant has not provided
objective evidence that he would be a person of interest to the Sri Lankan
authorities.”
[8]
Since
the Applicant is to be deported by reason of criminality, he is only entitled
to a consideration of risk under section 97 of the Immigration and Refugee
Protection Act (IRPA). That risk must be one that is personal to the
Applicant. The Applicant bears the burden to provide persuasive evidence that
is beyond that which is merely generalized in nature. It is clear from the
record that the Applicant failed to provide evidence of specific risk to him
and that it was not unreasonable for the officer, on the whole of the evidence,
to conclude that there was nothing to support the conclusion that such personalized
risk from state authorities such as they army or police, existed. As Dawson J.
of this Court said in Uthayakumar v. Canada (MPSEP), 2007 FC 998 at
paragraph 18:
18 The
evidence of risk provided to the officer was evidence of the generalized risk
faced by Tamils in Sri Lanka (for
example, there was evidence that a bus carrying civilians was hit when a mine
exploded so that three of the bus' passengers were wounded). The officer
considered the evidence of risk and observed that there was no suspension or
moratorium on removals to Sri Lanka. While
her choice of words was poor, the officer was saying, in effect, that the
generalized conditions in Sri Lanka were not such as to trigger Canada's
international obligations and preclude Mr. Uthayakumar's removal to Sri Lanka.
Based on the evidence and submissions presented to the officer, it was not
patently unreasonable for her to have assessed the evidence of generalized risk
as being insufficient to warrant a deferral of removal.
I find no reviewable
error in this regard.
[9]
The
second issue is whether the officer should have conducted an oral hearing.
Applicant’s counsel made a request for such hearing but none was held.
[10]
The
Applicant’s request for a hearing was, at best, cursory. There was no
credibility issues raised nor were any other issues as set out in section 167
of IRPA put before the officer, or this Court, that would justify an oral
hearing. No reviewable error was made in this regard.
[11]
Therefore,
the application will be dismissed. No question will be certified. There is no
order as to costs.
JUDGMENT
For the Reasons given;
THIS COURT ADJUDGES that:
1.
The application is dismissed;
2. There is no question
for certification;
3. There is no Order as
to costs.
"Roger T. Hughes"
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