Date:
20130213
Docket:
IMM-6508-12
Citation:
2013 FC 154
Ottawa, Ontario,
February 13, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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AMBIHAIBAHAN VILVARATNAM
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision by a pre-removal risk assessment (PRRA) officer (the officer) dated
June 14, 2012, wherein the applicant’s PRRA application was refused. The
officer’s decision was based on the finding that the applicant 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.
[2]
The applicant requests that the officer’s
decision be set aside and the application be referred for redetermination by a
different officer.
Background
[3]
The
applicant is a citizen of Sri Lanka of Tamil ethnicity. He arrived in Canada in January 1988. He made a refugee claim which was refused by the Convention Refugee
Determination Division of the Immigration and Refugee Board on August 31, 1990.
He was considered for permanent residence based on humanitarian and
compassionate (H&C) grounds in 1990, but was not successful. An exclusion
order was issued against him on June 6, 1992.
[4]
The
applicant was convicted of operating a motor vehicle while impaired under section
253 of the Criminal Code, RSC 1985, c C-46 on May 30, 1996. He submitted
an application for permanent residence via a spousal sponsorship on February 9,
1999, which was approved in principle in July 2001. He was convicted of failure
to comply and uttering threats on December 11, 2003. His application for
permanent residence was refused on October 18, 2004 based on criminal
inadmissibility.
[5]
He
was permitted to stay in Canada on work permits pending eligibility for a
pardon. He is the father of three Canadian children and the sole financial
support for them and his wife.
[6]
He
applied for a pardon, which was refused on February 3, 2009, due to his failure
to pay a $50 surcharge. The waiting period for a pardon thus began anew from
the date of paying that charge, making January 26, 2012, his new date of
eligibility.
[7]
Mere
months before that date, he reported to the Canada Border Services Agency and
was given the PRRA application form on September 14, 2011. He submitted that
application on September 20, 2011. He also filed an H&C grounds application
on November 25, 2011.
[8]
In
January 2012, the applicant applied for a police clearance to submit with his
new pardon application. While he awaited this clearance, amendments to the Criminal
Records Act, RSC 1985, c C-47, came into force, changing the waiting period
to five years. His eligibility therefore begins on January 26, 2014.
[9]
On
June 14, 2012, he was served with his rejected PRRA application. While a
removal date was set for July 21, 2012, Mr. Justice Russel Zinn granted a stay
on July 18, 2012.
Officer’s PRRA Decision
[10]
The
officer’s decision is dated May 14, 2012, although the respondent’s affidavit
indicates it was served on the applicant on June 14, 2012.
[11]
The
officer summarized the risks identified by the applicant, including substantial
excerpts from his counsel’s submissions. The officer acknowledged fifty-five
country conditions articles provided as evidence. The applicant’s position was
that as a Tamil male from the northern part of Sri Lanka, a failed refugee claimant
with a criminal record and someone with no support network in that country, was
at risk due to being falsely suspected by the Sri Lankan government as being a
member of the Liberation Tigers of Tamil Eelam (LTTE). The excerpted counsel’s
submissions summarized the country conditions evidence relating to the Sri
Lankan government’s human rights record and particularly for Tamil men. The
submissions also indicated anyone returning to Sri Lanka from Canada would be presumed to be wealthy and therefore at heightened risk.
[12]
In
assessing the applicant’s risk, the officer began by summarizing the
applicant’s immigration status history. The officer concluded that the country
conditions evidence was general in nature and did not contain sufficient
objective evidence of personalized risk. The officer relied on Kaba v Canada
(Minister of Citizenship and Immigration), 2007 FC 647 at paragraph 46,
[2007] FCJ No 874, for the requirement that assessment of an applicant’s risk
must be individualized and concluded that the evidence did not identify the
specific circumstances of the applicant or demonstrate evidence of risk that is
personal to the applicant.
[13]
The
officer excerpted the 2010 United State Department of State’s (DOS) report on Sri Lanka which outlined serious human rights problems. While the officer accepted that the
government and citizens of Sri Lanka in general continue to deal with very
serious issues, the officer concluded there was insufficient objective
documentary evidence of a personal nature to demonstrate the applicant fell
within sections 96 or 97 of the Act.
Issues
[14]
The
applicant submits the following points at issue:
1. Whether the
officer erred by requiring the applicant to establish a personalized risk and
by failing to conduct a proper assessment of whether the applicant has a well
founded fear of persecution with his accepted profile.
2. Whether the
officer erred by selectively relying on evidence and ignoring relevant evidence
that directly contradicted his or her determination.
3. Whether the
officer breached the duty of fairness by failing to provide adequate reasons.
[15]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer
err in denying the application?
Applicant’s Written Submissions
[16]
The
applicant submits the officer either misunderstood Kaba above, to mean
that risk can never be established on country condition documentation alone or
conflated the tests for sections 96 and 97 of the Act. It is trite law that
refugee protection can be afforded on the basis of persecution of similarly
situated individuals, without any individual experience of past persecution or
personalized documentation. An applicant must face a risk that is greater or
different from that of the general population, but this is not incompatible
with the idea that some or even many other people face a similar risk.
[17]
In
Kaba above, the applicant provided general documentary evidence on the
political and economic situations in that country and the Court found that he
had not established a connection to the evidence because his identified profile
had been fully assessed and rejected by both the Refugee Protection Division
and a PRRA officer. In this case, there has been no risk assessment of the
applicant since 1990, no credibility finding against him and vastly changed
circumstances in his homeland. The applicant submitted extensive evidence
relating to risks someone of his profile would face upon removal and there is
no indication the officer ever considered these risks.
[18]
The
applicant argues that in concluding that all Sri Lankans suffer a generalized
risk, the officer failed to differentiate between Sri Lankans generally and the
Tamil minority specifically. The officer quoted a passage from the 2010 DOS
report while providing no reason for not considering more recent country
conditions evidence. The officer’s own research contradicted the finding that
all Sri Lankans face a similar risk. The officer failed to engage with the
applicant’s evidence and a mere statement all the evidence has been considered
does not suffice when the evidence appears squarely to contradict the findings.
[19]
The
applicant also argues the officer breached the duty of fairness by failing to
provide adequate reasons.
Respondent’s Written Submissions
[20]
The
respondent argues that the standard of review is reasonableness. An applicant
must establish a personalized or specific risk that is personalized to the
individual applicant or shared by members of a group who are similarly situated
to the applicant. The officer did not err in relying on Kaba above, and
the fact that some evidence mentioned mistreatment of the applicant’s ethnic
group is not sufficient where the evidence also mentions specific
distinguishing factors not possessed by the applicant.
[21]
Decision
makers are presumed to have considered all of the evidence before them without
the need for each document to be expressly mentioned. The officer’s decision
directly addressed the applicant’s submissions and evidence. Some of the
evidence indicated that returnees to Sri Lanka of all ethnicities are treated
similarly. The officer’s reasons were adequate and show that the decision was
reasonable. Much of the evidence did not relate to a forward looking risk. The
officer did not make a finding of generalized risk, but rather acknowledged the
challenges of the post-war period for all. The balance of risks identified by
the applicant were not linked to him.
Analysis and Decision
[22]
Issue
1
What is
the appropriate standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue before
the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 57, [2008] 1 S.C.R. 190).
[23]
It
is trite law that the standard of review of PRRA decisions is reasonableness
(see Wang v Canada (Minister of Citizenship and Immigration), 2010 FC
799, [2010] FCJ No 980 at paragraph 11 and Aleziri v Canada (Minister of Citizenship and Immigration), 2009 FC 38, [2009] FCJ No 52 at paragraph 11).
[24]
In
reviewing the officer’s decision on the standard of reasonableness, the Court
should not intervene unless the officer came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47 and Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12 at paragraph 59, [2009] 1 S.C.R. 339). As the Supreme Court held
in Khosa above, it is not up to a reviewing court to substitute its own
view of a preferable outcome, nor is it the function of the reviewing court to
reweigh the evidence (at paragraph 59).
[25]
Adequacy
of reasons is no longer a matter of procedural fairness or an independent
ground of review (see Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708). I therefore
consider the applicant’s arguments on this point as part of the general
reasonableness review described above.
[26]
Issue
2
Did the officer err in
denying the application?
The Refugee Convention was
drafted at a time when mass killing based on religion and ethnic identity lay
fresh in the world’s memory. It is difficult to understand why an officer who
applies the Convention definition could dismiss evidence of ethnic persecution
on the basis that it was not sufficiently “individualized”.
[27]
Even
the most cursory reading of the Convention definition reveals that the very
problem it responds to is the persecution of individuals based on their
membership in a group. The officer’s reasoning would see Canada remove refugee claimants to states with open animus towards its minorities on the
basis that such persecution was insufficiently connected to individuals. This
approach must be rejected, as indeed it has been numerous times by this Court.
[28]
The
applicant rightly points to the decision of Madam Justice Eleanor Dawson in Surajnarain
v Canada (Minister of Citizenship and Immigration), 2008 FC 1165 at paragraph
12, [2008] FCJ No 1451 and the quote it contains from Professor James Hathaway:
Thus,
in the context of a refugee claim, advanced under what is now section 96 of the
Act, the Federal Court of Appeal accepted that a generalized risk may fall
within the definition of a Convention refugee if the applicant is personally
subject to serious harm that has a nexus to one of the five grounds enumerated
in the United Nations Convention Relating to the Status of Refugees. In Salibian
v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 at
page 259, the Federal Court of Appeal adopted the following from Professor
Hathaway's book "The Law of Refugee Status":
In
sum, while modern refugee law is concerned to recognize the protection needs of
particular claimants, the best evidence that an individual faces a serious
chance of persecution is usually the treatment afforded similarly situated
persons in the country of origin. In the context of claims derived from
situations of generalized oppression, therefore, the issue is not whether the
claimant is more at risk than anyone else in her country, but rather whether
the broadly based harassment or abuse is sufficiently serious to substantiate a
claim to refugee status. If persons like the applicant may face serious
harm for which the state is accountable, and if that risk is grounded in their
civil or political status, then she is properly considered to be a Convention
refugee. [emphasis in original]
[29]
This
point is acknowledged by the respondent in his memorandum at paragraph 19,
where the necessary risk is described as “a risk personal to the individual
Applicant or a risk shared by members of a group who are similarly situated
to the Applicant” (emphasis added). The officer, however, did not adhere to
such a definition.
[30]
I
do not take the words of Mr. Justice Michel Shore in Kaba above, to mean
that evidence of persecution based on membership in an ethnic group would be
insufficiently individualized. Indeed, he rejected the country conditions
evidence in that case on the basis that “the connection between that evidence
and the applicant himself has not been made” (at paragraph 1). In the decision
under review, it is unclear to me why being a member of the Tamil minority, to
say nothing of the more specific factors enumerated by the applicant, does not
establish that connection and the officer’s reasons do not aid in that inquiry.
The applicant’s evidence did not merely speak to the fact that “the human
rights situation in a country is problematic” (as described in Kaba at
paragraph 1), but that the human rights of people like him were in jeopardy.
[31]
It
also seems that the “connection” referred to in Kaba above, in the
second half of paragraph 1, is concerned with the connection between objective
and subjective fear. This was the meaning I drew from it in Robles v Canada (Minister of Citizenship and Immigration), 2012 FC 1134 at paragraph 50, [2012]
FCJ No 1219:
As
mentioned above, the officer was not required to rule on every document in
question (see Kaba above, at paragraph 1). In addition, as the
applicants were required to demonstrate both an objective and a subjective fear
of persecution, documentary evidence of country conditions alone was
insufficient to establish their PRRA submissions (see Kaba above, at
paragraph 1). [Emphasis added]
[32]
In
the decision under review, the officer gave no indication of doubting the
applicant’s subjective fear, whose credibility has not been questioned.
[33]
Finally,
I would note that Mr. Justice Shore’s analysis pertained to the analysis of
irreparable harm under the test from Toth v Canada (Minister of Employment
and Immigration) (1988), 86 NR 302, [1988] FCJ No 587. While irreparable
harm often overlaps with the type of analysis done under section 96, they are
not necessarily coterminous.
[34]
The
concern regarding individualized risk could be due to the officer’s conflation
of the jurisprudence of section 97, which is concerned with the distinction
between generalized and individual risk. Regardless of the source of the error,
the officer’s analysis of the applicant’s evidence regarding the treatment of
people in Sri Lanka similarly situated to him is unreasonable.
[35]
The
respondent’s counsel goes to great lengths to salvage the officer’s decision,
including pointing to details in the country conditions evidence the officer
made no mention of. However, the officer’s decision was not justified in terms
of such nuances as inter-ethnic comparisons of treatment of returnees or
questions relating to criminal records (as discussed at paragraphs 27 to 29 of
the respondent’s memorandum). Rather, the officer made blanket statements
dismissing the country conditions evidence:
I
have considered the extensive package of media articles and reports provided by
counsel in connection with the application for protection. I find the articles
and reports are general in nature and do not contain sufficient objective
evidence of personalized risk.
…
While
I accept this documentation in the context of assessing country conditions in Sri Lanka as they relate to human rights violations, I find that the evidence does not
identify specific circumstances of the applicant nor does it demonstrate
evidence of risk that is personal to the applicant.
…
Although
I accept that both the government and the citizens of Sri Lanka in general
continue to deal with several very serious issues, I find that I have been
provided with insufficient objective documentary evidence of a personal nature
to demonstrate that the applicant will likely face more than a mere possibility
of risk as per section 96 and 97 of the IRPA because of the current country
conditions. As per Kaba, documentary evidence on a country is insufficient to
warrant a positive risk assessment since the risk must be personal.
[36]
This
was the sum total of the officer’s analysis of the evidence. While I
acknowledge that I am required to supplement a tribunal’s reasons before
rejecting them (see Newfoundland Nurses above, at paragraph 12), in this
case, the officer’s rationale for rejecting the evidence was based on a
misunderstanding of its relevance, as described above. Supplementing that
rationale would not help it survive reasonableness review.
[37]
The
officer’s decision was outside the range of defensible outcomes. The judicial
review is therefore granted and the matter should be returned to Citizenship
and Immigration Canada for redetermination.
[38]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed, the decision of the officer is set aside and the matter is referred to
a different officer for redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle
y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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