Date:
20130417
Docket:
IMM-3402-12
Citation:
2013 FC 384
Ottawa, Ontario,
April 17, 2013
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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THIVYAGANTHAN THIYAGARAJAH
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPARATION
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
In
2010, Mr Thivyaganthan Thiyagarajah arrived in Canada from Sri Lanka and claimed refugee protection based on his fear of persecution by the Liberation
Tigers of Tamil Eelam (LTTE), the Criminal Investigation Division (CID), the
Sri Lankan Army (SLA), the Karuna Group, and the Eelam People’s Democratic
Party (EPDP). Specifically, he alleged that the SLA had arrested and detained
him based on his perceived connection with the LTTE. A panel of the Immigration
and Refugee Board dismissed his claim on the basis that his testimony was
inconsistent and implausible.
[2]
In
2011, Mr Thiyagarajah filed a request for a pre-removal risk assessment (PRRA).
In it, he presented evidence that he contended was new – his affidavit, and
letters from his sister, his uncle, a friend, a justice of the peace, and a
human rights lawyer. The PRRA officer found that the affidavit and the letter
from Mr Thiyagarajah’s sister amounted to new evidence. The officer rejected
the other documents on the basis that they could have been presented as part of
Mr Thiyagarajah’s refugee claim.
[3]
The
officer dismissed Mr Thiyagarajah’s PRRA application finding that his sister’s
letter did not establish that he was targeted by authorities in Sri Lanka. In addition, the letter from the human rights lawyer did not actually
corroborate Mr Thiyagarajah’s version of events. Further, documentary evidence
did not show that conditions in Sri Lanka had deteriorated since Mr
Thiyagarajah’s failed refugee claim. Accordingly, the officer found that there
was no more than a mere possibility that Mr Thiyagarajah would experience
persecution or a substantial risk of torture, cruel and unusual treatment, or
death on his return to Sir Lanka.
[4]
Mr
Thiyagarajah argues that the officer erred in three respects. First, the
officer made adverse credibility findings without convening an oral hearing.
Second, the officer applied the wrong legal test. Third, the officer failed to
consider relevant new evidence and, therefore, rendered an unreasonable
decision.
[5]
I
agree that the officer’s decision was unreasonable and will grant this
application for judicial review on that basis alone. It is unnecessary, therefore,
to consider the two other issues Mr Thiyagarajah presented.
II. The officer’s
treatment of the evidence
[6]
The
officer agreed to consider as new evidence the letter from Mr Thiyagarajah’s
sister. In it, she reported that the EPDP and the CID had visited her to
inquire about Mr Thiyagarajah’s activities in Canada, particularly his
involvement in pro-LTTE activities. They told her that he would have problems
if he returned to Sri Lanka. The officer concluded that this evidence did not
show that Mr Thiyagarajah was being targeted since he had not been involved in
any pro-LTTE activities in Canada.
[7]
While
the officer rejected the letter from the human rights lawyer because it was not
new evidence, the officer nonetheless used the letter to discredit Mr
Thiyagarajah’s version of events. In his letter, the lawyer stated that Mr
Thiyagarajah had been released from detention after the village headman
intervened. However, Mr Thiyagarajah had previously claimed that he was
released after his uncle paid a bribe or when his mother persuaded officials to
liberate him.
III. Did the officer
render an unreasonable decision?
[8]
In
my view, the officer’s treatment of the evidence described above resulted in an
unreasonable decision.
[9]
First,
because he had not been involved in pro-LTTE activities in Canada, the officer discounted the evidence that officials in Sri Lanka were interested in Mr
Thiyagarajah. However, the evidence actually showed that officials may have
perceived Mr Thiyagarajah as an LTTE sympathizer, whether or not they had
legitimate grounds for doing so. Persecution based on perceived political
opinion is a valid basis for refugee protection. The officer simply did not
consider that possibility.
[10]
Second,
it was unreasonable for the officer to reject the evidence in the lawyer’s
letter that supported Mr Thiyagarajah’s application while, at the same time,
using the portions of it that contradicted his version of events to discredit
Mr Thiyagarajah’s evidence. The lawyer confirmed Mr Thiyagarajah’s claim that
he had been arrested by Sri Lankan forces following a bomb blast near his home.
In the circumstances, the officer was bound to explain why the lawyer’s
evidence about Mr Thiyagarajah’s release could be accepted while his
corroboration of Mr Thiyagarajah’s arrest and detention could not.
IV. Conclusion and
Disposition
[11]
In
my view, the officer’s treatment of the evidence resulted in an unreasonable
decision. I must, therefore, allow this application for judicial review and
order another officer to reassess Mr Thiyagarajah’s PRRA application. Neither
party proposed a question of general importance for me to certify, and none is
stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is allowed and the matter is referred back to another
officer for a reassessment.
2.
No
question of general importance is stated.
“James W. O’Reilly”
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