Date: 20080206
Docket: IMM-1165-07
Citation: 2008 FC 155
Ottawa, Ontario,
February 06, 2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
THURAI
NARANY
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for
judicial review pursuant to section 72 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of the Pre-Removal
Risk Assessment (PRRA) Officer, dated January 17, 2007, wherein the Officer
found that the applicant is not at risk of torture, death or cruel and unusual
punishment if he were returned to Sri Lanka.
[2]
Mr.
Narany is a 75-year old citizen of Sri Lanka and an ethnic Tamil. His
three children have all left Sri Lanka, with two living in Canada. His wife
remains in Sri
Lanka,
but because of the war, he does not know where she is. He alleged that he was
forced by the Liberation Tamil Tigers of Eelam (LTTE) to work for them in the
early 1990s, when his city, Jaffna, was under their control.
[3]
He
arrived in Canada on a
visitor’s visa in December 2002, and applied for refugee status three months
later. After two days of hearings before the Refugee Protection Division (RPD),
the decision of May 17, 2005, he was found not to be a Convention refugee or a
person in need of protection under sections 96 and 97 of the IRPA. The RPD found him not to be credible, and
further found that if he were eligible for protection under sections 96 or 97
of the IRPA, he would be excluded under Article 1F of the Refugee Convention,
as listed in the Schedule to IRPA, for participation in war crimes or crimes
against humanity for his assistance to the LTTE. Leave for judicial review of
that decision was refused.
[4]
Mr.
Narany first applied for a PRRA in January 2006, which was rejected in July of
that same year. An application for leave and judicial review of the first PRRA
was filed but not pursued, as he had filed submissions for a second PRRA. He
claimed, at both the RPD hearing and his first PRRA, risk from the LTTE and other
Tamil groups for having fled, risk of conscription despite his age, and risk of
abduction or extortion as the parent of children living outside Sri Lanka. He filed a
new PRRA application, resulting in a negative decision dated January 17, 2007.
I. Decision
[5]
The
PRRA Officer considered only new evidence which had not been before the RPD or
the officer who determined Mr. Narany’s first PRRA. The Officer then assessed
his risk for each of the claimed grounds, and dismissed them. In doing so, the Officer
found that the applicant had not provided evidence which countered the finding
of the first PRRA officer that he did not have a profile which made him
particularly subject to risk at the hands of the LTTE.
II. Issues
A.
Did
the PRRA Officer err in not considering all of the evidence including that
which was presented at the first PRRA hearing?
B.
Did
the PRRA Officer ignore the evidence or make a perverse and capricious
decision?
III. Standard of review
[6]
In
Figurado v. Canada (Solicitor General), 2005 FC 347, Justice Luc J.
Martineau noted that the standard of review of a PRRA Officer’s decision,
considered as a whole, is reasonableness, while particular factual findings
should stand unless they are patently unreasonable.
IV. Analysis
A. Did
the PRRA Officer err in not considering all of the evidence including the one
presented at the first PRRA hearing?
[7]
It
is well-established that the PRRA is not an appeal or a reconsideration of the
RPD’s decision. Section 113(a) of the IRPA provides that the decision with
respect to the findings on sections 96 and 97 is final, except where evidence
of new, different or additional risks is established which could not
have been foreseen by the applicant at the time of the RPD hearing: Perez v.
Canada (Minister of
Citizenship and Immigration), 2006 FC 1379. Likewise, a second PRRA is
not a review of the first, and the second PRRA Officer need not revisit
evidence which was before the first except if there is an allegation of new
risks. Therefore, the applicant’s submission that it should be done here,
cannot be entertained because of the clear intent of section 113(a) of the IRPA.
B. Did
the PRRA Officer ignore the evidence or make a perverse and capricious
decision?
[8]
The
finding of the first PRRA Officer was that there was insufficient evidence
before her to support the applicant’s contention that he was personally at risk
of torture, conscription or extortion, or was a member of a group with higher
risk of such persecution. The decision under review in the instant case makes
reference several times to the ‘profile’ of someone at risk of persecution by
the LTTE and finds that the applicant does not match that profile. These
statements show that the PRRA Officer was alive to the fact that membership of
a group vulnerable to persecution is considered equivalent to being personally
at risk.
[9]
The
profiles of those at risk from the LTTE are young Tamil professionals, Tamil
businessmen, Tamil political figures and activists demonstrating a anti-Tamil
stance.
[10]
There
is also another aspect to those profiles, in that the applicant submits that
persons who lived or reside abroad, in returning to Sri Lanka are often
considered “wealthy” and are subject to kidnappings to be held for ransom or
obliged to contribute financially or subject to giving bribes to the police as
a form of extortion: see Kularatnam v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1122 at paras. 10-13; Sinnasamy v. Canada (Minister of
Citizenship and Immigration), 2008 FC 67 at paras. 25 and 27. An omission
to consider this possibility constitutes a reviewable error.
(1) The
travel warning
[11]
The
applicant further asserts that the PRRA Officer refused to consider relevant
evidence, i.e. the travel warning issued by the Canadian Federal Department of
Foreign Affairs (DFAIT) which advised that non-essential travel to Sri Lanka should be
limited.
[12]
The
applicant argues that the PRRA Officer did not consider the seriousness of this
warning and noted that the warning was aimed mainly at Canadian citizens and permanent
residents.
[13]
The
respondent replies that the PRRA Officer did consider this warning noting it
was that mainly for Canadian citizens and did no more than show the general
situation in Sri Lanka.
[14]
There
is no doubt that this document was mainly addressed to Canadian citizens and
permanent residents, but there is no valid reason why it should not be
considered when dealing with other nationals. Justice Yves de Montigny wrote
the following on the subject in Sinnasamy, above, at para 35:
Finally, the applicant submits that the
PRRA officer misinterpreted a DFAIT report which advises Canadian against all non-essential
travel. While I find it disingenuous to argue that it is only meant to advise
Canadians and does not apply to citizens of Sri Lanka, as if the country were
not as dangerous for them as it is for Canadians and permanent residents of
Canada, I agree with the respondent that this advisory could be interpreted as
discouraging travel to the north and east only.
[15]
However,
I believe the consequences of this warning were sufficiently examined by the
PRRA Officer in this case.
(2) The
RPD Decision
[16]
The
PRRA Officer could correctly use the RPD decision as a starting point for his
analysis but he had to pursue his own one to find that the applicant was not at
a particular risk for extortion.
V. Conclusion
[17]
The
reviewable errors made by the PRRA Officer in the assessment of the applicant’s
case merit a new assessment and justify this application for judicial review.
[18]
No
question of general importance was raised.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application for judicial review be granted.
The decision of the PRRA Officer is set aside and the matter is referred back
for redetermination by a different PRRA Officer. No questions are certified.
"Orville
Frenette"
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