Date: 20080512
Docket: IMM-3574-07
Citation: 2008 FC 597
Ottawa, Ontario, May 12,
2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
RAVINDRA
KUMARASAMY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to section 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “IRPA”) for judicial review of a
decision made by a Pre-Removal Risk Assessment Officer (the “Officer”), dated
July 23, 2007. The Officer determined that the Applicant, Ravindra Kumarasamy,
would not be subject to risk of persecution, danger of torture, risk to life or
cruel and unusual treatment or punishment if returned to Sri Lanka, his country
of citizenship.
[2]
In
a decision dated March 23, 2005, the Refugee Protection Division of the
Immigration and Refugee Board accepted that the Applicant is a Tamil from
northern Sri
Lanka,
but rejected his claim for refugee status because of credibility issues.
[3]
The
Applicant applied for a pre-removal risk assessment on September 6, 2006. The Officer
issued his negative assessment on July 23, 2007. In doing so, the Officer
considered and extensively analyzed, without the Applicant’s knowledge, two
documents released after the Applicant’s September 22, 2006 submissions. The documents
considered by the Officer were:
-
United
Nations High Commissioner for Refugees Position on the International Protection
Needs of Asylum-seekers from Sri
Lanka (December
2006) (“UNHCR Paper”).
-
British Home
Office Operational Guide Note on Sri Lanka
(version 5, March 9, 2007) (“Home Office Guidance Note”).
[4]
The
UNHCR Paper provided an update on the conflict in Sri Lanka and set out
guidance for assessment of various categories of asylum claims by individuals
from that country. It reported that since January 2006, the security situation
in the north and east deteriorated with a marked increase in hostilities. The
report covers events through the year including events as late as December
2006. The UNHCR Paper recommended that “[a]ll asylum claims of Tamils from the
North or East be favourably considered” and that there were no internal flight
alternatives for those who flee targeted violence or human rights abuses by
either the LTTE or the authorities or paramilitary groups (Tribunal Record at
75).
[5]
By
contrast, the Home Office Guidance Note evaluates the general human rights
situation in Sri
Lanka
and provides guidance to British asylum caseworkers on the handling of claims
by nationals or residents from Sri Lanka. The Home Office
Guidance Note, issued two months after the UNHCR Paper, covered events up to
February 2007. The Home Office Guidance Note makes specific reference the
UNHCR Paper and differs in its conclusions. For example:
3.6.22
In its’
[sic] position paper dated 22 December 2006 on the International Protection
Needs of asylum-seekers from Sri Lanka, UNHCR have said that following the
reintroduction of the post ceasefire security arrangements, many checkpoints
have been re-instated on the main roads and in the towns in the North and East
or in Colombo, making it particularly difficult for Tamils to travel in or to
government-controlled areas. In addition, they state that it is difficult for
individuals born in LTTE-controlled areas (this is indicated on the National
Identity Card), to cross the checkpoints and that the LTTE has also restricted
movements of civilians out of the areas under its control, thus preventing them
from moving into government-controlled areas. Furthermore, they state that
there is no internal flight option open to Tamil groups and that even if an
individual reached a government-controlled area, she/he would not necessarily
be able to secure the protection of the authorities, particularly if they were
being targeted by the LTTE, given the LTTE’s capacity to track down and target
its opponents throughout the country.
…..
3.6.24
Conclusion. We do not accept UNHCR’s
position that there is no internal flight alternative for individuals fleeing
targeted violence and human rights abuses by the LTTE due to difficulties in
travel because of the reinstatement of checkpoints and because of the inability
of the authorities to provide “assured protection” given the reach of the
LTTE. UNHCR’s reliance on the concept of “assured protection” is not a
fundamental requirement of the Refugee Convention. In referring to “assured
protection”, UNHCR are using a higher standard than the sufficiency of
protection standard required by the Refugee Convention (see caselaw section
3.6.23). Moreover, asylum an human rights claims are not decided on the basis
of a general approach, they are based on the circumstances of the particular
individual and the specific risk to that individual. It is important that
caseworkers give individual consideration to whether the applicant has a
well-founded fear of persecution for a convention reason or are otherwise
vulnerable that they may engage our obligations under the ECHR. Claimants who
fear persecution at the hands of the LTTE in LTTE dominated areas are able to relocate
to Colombo, or other Government
controlled areas and it would not normally be found to be unduly harsh for
claimants to relocate in this way. Similarly, the government is willing to
offer to protection to those who have relocated from LTTE controlled areas and
who still fear reprisals from the LTTE.
[6]
The
Applicant submits that by being denied an opportunity to comment on the UNHCR
Paper and the Home Office Guidance Note, he was deprived of procedural fairness.
The Respondent submits that the two documents are widely available and do not
reveal anything novel and significant which evidence changes in general country
conditions in Sri
Lanka
that may have affected the PRRA decision.
ISSUE
[7]
The
issue in this judicial review is whether the Officer erred by failing to
disclose that he was going to consider the UNHCR Paper the Home Office Guidance
Note, both of which were released after the Applicant’s PRRA submissions.
STANDARD OF REVIEW
[8]
This
precise issue was discussed in Mancia v. Canada (Minister of
Citizenship and Immigration), [1998] 3 F.C. 461 at para. 22 (F.C.A.).
In upholding the decision of the application judge, the Federal Court of Appeal
stated that “fairness dictates that the applicant be informed of any novel and
significant information which evidences a change in the general country
conditions that may affect the disposition of the case”.
[9]
As
the Court of Appeal indicates, this is a question of procedural fairness. As
such, this Court’s task is to determine if the process undertaken by the
Officer satisfies the requirements of procedural fairness. If not, the
Officer’s decision will be sent back for re-determination (Sketchley v. Canada (Attorney
General),
2005 FCA 404).
ANALYSIS
[10]
In
Mancia, above, at para. 22, the Federal Court of Appeal set out the
parameters of the duty of fairness owed by a PRRA officer when considering
publicly available general country condition documents which have not been
disclosed to a claimant. Justice Décary stated:
These decisions are based, it seems to
me, on the two following propositions. First, an applicant is deemed to know
from his past experience with the refugee process what type of evidence of
general country conditions the immigration officer will be relying on and where
to find that evidence; consequently, fairness does not dictate that he be
informed of what is available to him in documentation centres. Secondly,
where the immigration officer intends to rely on evidence which is not normally
found, or was not available at the time the applicant filed his submissions, in
documentation centres, fairness dictates that the applicant be informed of any
novel and significant information which evidences a change in the general
country conditions that may affect the disposition of the case (emphasis
added).
Later in the same decision, at paragraph
26, Justice Décary held:
The documents are in the public domain.
They are general by their very nature and are neutral in the sense that they do
not refer expressly to an applicant and that they are not prepared or sought by
the Department for the purposes of the proceeding at issue. They are not part
of a “case” against an applicant. They are available and accessible, absent
evidence to the contrary, through the files, indexes and records found in Documentation
Centres. They are generally prepared by reliable sources. They can be
repetitive, in the sense that they will often merely repeat or confirm or
express in different words general country conditions evidenced in previously
available documents. 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 (emphasis added).
[11]
The
use of the documents at issue, the UNHCR Paper and the Home Office Guidance
Note, were recently the subject of judicial review in Sinnasamy v. Canada
(Minister of Citizenship and Immigration), 2008 FC 67. While granting
judicial review in that case, Justice de Montigny found that a PRRA officer
could independently consult the UNHCR Paper and the Home Office Guidance Note
without disclosure to the claimant. In that case, the claimant applied on
December 22, 2006 for Pre-Removal Risk Assessment, the same month the UNHCR Paper
was released. The Home Office Guidance Note was issued two months later. In Sinnasamy,
above, at paras. 39-40, Justice de Montigny had the following to say about the
Home Office Guidance Note:
In the case at bar, I believe the PRRA
officer was entitled to rely on the UK Home Office Operational Guidance Note
for Sri Lanka, since this is a publicly available document from a reliable and
well-known website. The fact that the report is not contained in the IRB
reference material does not mean that it is not publicly available. While I am
not prepared to accept that every document available on the internet is
“publicly available” for the purpose of determining what fairness requires in
the context of a PRRA, since this would impose an insurmountable burden on the
applicant as virtually everything is nowadays accessible on line, I am of the
view that the specific document under challenge here could be consulted by the
PRRA officer without advising the applicant. In many respects, it merely
confirms and collects the evidence available from other sources. It does
not reveal novel and significant changes in the general country conditions,
even if it is not entirely parallel with the findings reported in the UNHCR
document. Indeed, it seems to me the PRRA officer erred not so much in
considering the Home Office document, but in not discussing the contradictory
findings of the UNHCR (emphasis added).
[12]
Since
the Officer relied upon the same documents which were under consideration by
Justice de Montigny in Sinnasamy, above, the issue of judicial comity is
raised. Specifically, I have to consider whether the Officer erred in not disclosing
the UNHCR Paper and the Home Office Guidance Note, while keeping in mind that
Justice de Montigny held, with respect to the same documents, that there was no
requirement for disclosure on the part of the PRRA officer.
[13]
Justice
Mosley provided the following guidance with respect to judicial comity in Benitez
v. Canada (Minister of
Citizenship and Immigration), [2007] 1 F.C.R. 107 at paras. 33-35;
aff’d 2007 FCA 199; leave to appeal refused [2007] S.C.C.A. No. 391:
Judicial comity is not the application of
the rule of stare decisis, but recognition that decisions of the Court
should be consistent to the extent possible so as to provide litigants with
some predictability. I am aware, as was stated in Re Hansard Spruce Mills
Ltd., [1954] 4 D.L.R. 590 (B.C.S.C.) [at page 592]:
…I have no power to overrule a brother
Judge, I can only differ form him, and the effect of my doing so is not to
settle but rather to unsettle the law, because, following such a difference of
opinion, the unhappy litigant is confronted with conflicting opinions emanating
from the same Court and therefore of the same legal weight.
With judicial comity in mind, I have
concluded that I should differ from the prior decisions of my colleagues only
if I am satisfied that the evidence before me requires it or that I am
convinced that the decisions were wrongly decided in that they did not consider
some binding authority or relevant statue. In that regard, I would note that
while the record before me includes the evidence that was before the Court in
Thamotharem, it also includes new evidence that was not part of the record in
that case.
[14]
While
the case at bar and Sinnasamy, above, share similarities, I am of the
view that there is a major factual difference which takes this case outside the
sphere of judicial comity. In this case, the Applicant made his PRRA
submissions two months prior to the release of the UNHCR Paper. The motivation
behind the 2006 release of the UNHCR Paper, which was an update of the April
2004 version, was the rapidly changing situation in Sri Lanka. The
situation in Sri Lanka had changed to the extent that the authors of the paper
stated in the introduction to the 2006 version that “[s]ince the issuance of
the [UNHCR Paper] in April 2004, there have been several major developments in
the country which fundamentally affect the international protection needs of
individuals from the country who seek, or have sought asylum abroad” (Tribunal
Record at 65).
[15]
In
Sinnasamy, above, the claimant made his PRRA submissions in December
2006, close in time to the release of the UNHCR Paper. It is to be expected
that the claimant in that case would have been aware of the situation in Sri Lanka as covered
by the updated UNHCR Paper and his submissions would have reflected that
worsening situation. In the case at bar, the Applicant made his PRRA
submission at least two months prior to the release of the updated UNHCR Paper
and therefore would have been unable to comment with the same currency to the
worsening situation in Sri Lanka.
[16]
The
UNHCR Paper, a post-submission document relied upon by the Officer, in my view,
satisfies the requirement that the information be “novel and significant” which
evidences a change in the general country conditions, as set out in Mancia,
above. The fact that the UNHCR Paper considered the worsening conditions
sufficient that it decided to change its recommendations would be a new and
significant development.
[17]
As
a result of the factual differences in Sinnasamy, above, and the case at
bar, specifically that it was not possible for the Applicant’s submissions in
this case to correlate with the currency of the UNHCR Report, this is not an
instance where judicial comity should apply.
[18]
The
importance of the UNHCR Paper was noted by Justice de Montigny in Sinnasamy,
above. He stated at paragraph 40 that “the PRRA officer erred not so much in
considering the [Home Office Guidance Note], but in not discussing the
contradictory findings of the [UNHCR Paper]”. I would add that the PRRA Officer
is entitled, indeed obligated, to have regard for the UNHCR Paper, as a recent
report on changing country conditions, and also may refer to the responding Home
Office Guidance Note, which addresses the same circumstances. However, given
the subsequent timing of these documents, he should have given the Applicant
notice of the documents so he would have benefit of the Applicant’s submissions.
[19]
The
Applicant’s right to procedural fairness was breached insofar as the Officer
failed to disclose the UNHCR Paper.
CONCLUSION
[20]
I
conclude that the judicial review should be granted and the matter sent back
for re-determination.
.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The
application for judicial review is granted. The decision is set aside and the
matter sent back for re-determination.
2.
No
question of general importance is certified.
“Leonard
S. Mandamin”
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