Date: 20080702
Docket: IMM-5401-07
Citation: 2008 FC 827
Ottawa, Ontario, July 2,
2008
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
PRIYANTHA SWARN KIRINDAGE DE
SILVA,
ARAVINDA WEERATHUNGA,
THILINI WEERATHUNGA, AND
KEISHI WEERATHUNGA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Who
killed Thushari de Silva on the 14th day of July in the year 2000?
Was she shot to death by Sri Lankan police for failing to stop at a road check
or was she murdered by her erstwhile lover, Ranjith Wanaraja, the corrupt head
of the equally corrupt Police Special Investigation Unit? The official version
is the former. Thushari’s sister’s refugee claim, more properly a claim for international
protection under section 97 of the Immigration Refugee and Protection Act, is
based on the latter.
[2]
The
claim of Priyantha de Silva, her husband and their two children, was dismissed
in May 2004. The Panel concluded that the claimants had failed to produce
credible or trustworthy evidence of a serious possibility that they would be at
risk from the police should they return to Sri Lanka. Their first
pre-removal risk assessment (PRRA) was also rejected, but Mr. Justice
Teitelbaum granted judicial review, 2007 FC 841, 63 Imm. L.R. (3d) 245. The
second PRRA decision was also negative. This is a judicial review of that
decision.
[3]
Thushari
de Silva died violently, of that there can be no doubt. Her sister Priyantha’s claim
for Canada’s protection
had a number of facets. It was alleged that there had been a court inquiry and
that the police had been absolved of all blame. However Ms. de Silva
subsequently found a love letter which put Inspector Wanaraja in the spotlight.
The Sri Lankan court record, which was not produced, as it was said to have
been misplaced, was, among other things, supposed to establish that Thushari’s
assistant had received information that she under arrest and had attended at a police
station to investigate.
[4]
In
its decision, the Panel noted the “total lack of official documentation on the
evidence presented in the Court proceedings.” The Panel also did not believe
that the alleged love letter was written by Inspector Wanaraja. An application
for leave and judicial review was refused. However, subsequently Mr. Justice
Teitelbaum granted judicial review of the first PRRA as the officer failed to
consider “new evidence” that arose after the original rejection, or was not
reasonably available, as required by section 113 of IRPA. More particularly, he
held at paragraph 17:
Although the PRRA process is meant to assess only evidence of new
risks, this does not mean that new evidence relating to old risks need not
be considered. Moreover, one must be careful not to mix up the issue of
whether evidence is new evidence under subsection 113(a) with the issue of
whether the evidence establishes risk. The PRRA officer should first consider
whether a document falls within one of the three prongs of subsection 113(a).
If it does, then the Officer should go on to consider whether the document
evidences a new risk.
[5]
In
this judicial review of the second PRRA, Ms. de Silva again asserts that the
new officer erred in law in concluding that section 113(a) of IRPA requires new
facts and not merely new evidence. It is also submitted that the officer’s
decision, particularly in concluding that there was no evidence demonstrating
that Ms. de Silva’s complaints had become known to the Sri Lankan authorities
was unreasonable, and that since credibility was in issue a hearing should have
been granted under Regulation 167.
DISCUSSION
[6]
Section
113(a) provides:
|
113.
Consideration of an application for protection shall be as follows:
(a) an
applicant whose claim to refugee protection has been rejected may present
only new evidence that arose after the rejection or was not reasonably
available, or that the applicant could not reasonably have been expected in
the circumstances to have presented, at the time of the rejection; […]
|
113. Il est disposé de la demande
comme il suit :
a)
le demandeur d’asile débouté ne peut présenter que des éléments de preuve
survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles
ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances,
de s’attendre à ce qu’il les ait présentés au moment du rejet; […]
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[7]
Section
113(a) requires a two-step analysis. The officer must first determine whether
each piece of so-called new evidence is actually new. If so, that evidence is
admissible. The next step is to assess and give weight to it.
[8]
Ms.
de Silva alleges, and I agree, that the officer combined these two steps, and
therefore did not take into account the whole of the evidence, both old and
new. For instance, the new evidence included a letter from a journalist which
largely corroborated the allegations. The officer said that the fact that these
allegations were now coming from a journalist did not make the allegations new.
That is quite true, but given the finding of lack of credibility in the
original decision, corroborating evidence from someone whose evidence was not
reasonably available at the first hearing is both relevant and new.
[9]
Copy
of some Sri Lankan court proceedings were produced at the second PRRA hearing. The
record may not be complete as it does not establish that Inspector Wanajara was
acquitted. Rather, the record appears to be more in a nature of a preliminary
inquiry. Mr. Justice Teitelbaum specifically took the first PRRA officer to
task for not considering the court record. What is important about the record,
even if only a preliminary inquiry, is that it states that Thushari’s assistant
did attend at a police station the day before, as was confirmed by the
testimony of a police officer. This puts in question the Panel’s original
analysis:
…allegedly, her father told her
that an employee, Zeena, who worked at his employment agency with Thushari
testified in court that the evening before the killing, two men visited her
house to inform her that Thushari had been taken into custody. Allegedly,
a police officer confirmed at the court that Zeena had gone to the police
station inquiring about the principal claimant’s sister. [Emphasis added.]
The allegation has been established, which
may have some bearing on credibility.
[10]
Another
very important issue is whether the authorities in Sri Lanka would have been on
notice that Ms. de Silva had been publicly complaining about this case not only
while she was still in Sri Lanka, but also from Canada. In this regard, the
record contains a letter from Ms. de Silva dated 10 May 2004 to the President
of Sri Lanka with copies to the Prime Minister, the Attorney General, the
Inspector General of Police and a Member of Parliament.
[11]
The
timing of the 10 May 2004 letter is relevant. The original hearing before the
Refugee Protection Division of the IRB was on 19 January and 7 April 2004. The
date of the decision was 21 May 2004. The Minister points out that this
letter came into existence before the rejection. Section 161(2) of the
Regulations requires an applicant to specifically identify new evidence and
indicate how that evidence applies to him or her. This was not done, and
consequently it is not surprising that the officer made no reference to it.
[12]
Yet,
a cornerstone of the negative holding was that the authorities would not be
aware of Ms. de Silva’s various activities. This letter appears to put the lie
to that contention. It is clearly an important piece of evidence. The officer
is presumed to have considered everything in the file, even if not mentioned.
However, the more important the evidence is, the more important it is to
identify it (Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration), 157 F.T.R. 35, [1998] F.C.J. No. 1425 (QL)). It is
speculation on the Minister’s part that the officer considered the letter and
rejected it on the grounds that it was not new evidence.
[13]
Considered
as a whole, the original Panel’s finding with respect to credibility permeates
the officer’s decision. Regulation 167 prescribes the officer’s discretion to
hold a hearing as follows:
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167. For the purpose of
determining whether a hearing is required under paragraph 113(b) of
the Act, the factors are the following:
(a) whether there is evidence that raises a
serious issue of the applicant's credibility and is related to the factors
set out in sections 96 and 97 of the Act;
(b) whether the evidence is central to the
decision with respect to the application for protection; and
(c) whether the evidence, if accepted, would
justify allowing the application for protection.
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167. Pour l’application
de l’alinéa 113b) de la Loi, les facteurs ci-après servent à décider
si la tenue d’une audience est requise :
a)
l’existence d’éléments de preuve relatifs aux éléments mentionnés aux articles
96 et 97 de la Loi qui soulèvent une question importante en ce qui concerne
la crédibilité du demandeur;
b)
l’importance de ces éléments de preuve pour la prise de la décision relative
à la demande de protection;
c) la
question de savoir si ces éléments de preuve, à supposer qu’ils soient admis,
justifieraient que soit accordée la protection.
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[14]
A
hearing should have been granted.
[15]
For
these reasons, the application for judicial review will be granted. No doubt,
Ms. de Silva will identify her letter to the President of Sri Lanka as new
evidence. Whether it is, in the circumstances, remains to be seen.
ORDER
UPON APPLICATION for
judicial review of the decision of a Pre-Removal Risk Assessment Officer, dated
16 November 2007, rendered in file ID numbers 5234-6006,5234-6005, 5240-3935,
and 5240-3948, refusing the applicants’ pre-removal risk assessment
application;
FOR THE
REASONS GIVEN ABOVE;
THIS COURT
ORDERS that:
1.
The
application is granted.
2.
The
matter is referred back to another officer for redetermination in accordance
with these reasons.
3.
There
is no serious question of general importance to certify.
“Sean Harrington”
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