Date:
20130529
Docket:
IMM-7862-12
Citation:
2013 FC 564
Ottawa, Ontario,
May 29, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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PRADEEP RATHNAVEL
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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
March 30, 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 and his family fled
the country due to the attempts by the Liberation Tigers of Tamil Eelam (LTTE)
to recruit the applicant and his son. The applicant went into hiding on
November 14, 2006 to escape this recruitment.
[4]
He
arrived in Canada on June 5, 2010 and claimed refugee protection. The Refugee
Protection Division (RPD) dismissed his claim on March 1, 2011.
[5]
The
applicant’s wife and children have been accepted by Canada as Convention
refugees and became permanent residents in June 2008. The applicant’s wife
omitted him in her application for permanent residence as she was not aware of
his whereabouts.
[6]
His
spouse submitted a sponsorship application on July 8, 2011. The applicant
expects it to be granted, as their marriage is genuine and he is employed.
[7]
The
applicant submitted the PRRA application on June 10, 2011.
Officer’s PRRA Decision
[8]
In
a letter dated March 30, 2012, the officer informed the applicant his
application had been rejected. The officer’s notes to file serve as reasons for
the decision.
[9]
The
officer’s notes summarize the applicant’s background and indicated that the
country conditions articles that post-dated the applicant’s RPD hearing would
be considered.
[10]
The
officer noted the RPD had rejected the applicant’s claim on the basis of a lack
of credibility and that the risks he alleged were the same as he had presented
to the RPD. The officer concluded that the evidence submitted concerning the
Sri Lankan government’s failure to punish those who committed abuses during the
war did not help him overcome the RPD’s credibility concerns. Indeed, the
officer found that the articles provided evidence of improvements in the
situation and assistance to refugee claimants returning to Sri Lanka.
[11]
The
officer noted the extract from a Sri Lankan immigration statute provided by the
applicant, but found no link to the applicant or his claim for protection. The
officer concluded the applicant had presented no new evidence that overcame the
RPD’s finding and that the risks identified were the same and therefore there
were no grounds to make a positive determination.
[12]
The
applicant was scheduled for removal from Canada on August 11, 2012. Madam
Justice Elizabeth Heneghan of this Court granted a stay of removal pending the
disposition of this judicial review.
Issues
[13]
I
would phrase 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
[14]
The
applicant argues the officer did not fully consider the applicant’s evidence.
The officer failed to analyze the link between the applicant’s evidence that he
came to Canada, used false documents and his evidence concerning the Sri Lankan
immigration statute.
[15]
The
officer failed to consider the applicant’s profile as a suspected LTTE
supporter and the effect this would have on his treatment upon return to the
country at the Colombo airport. The officer failed to consider documents in the
RPD’s National Documentation Package which discussed the repercussions for
failed refugee claimants who had left the country without proper government
authorization. The failure to consider this evidence constitutes a reviewable
error, or in the alternative, bias. The officer’s conclusion that the country
conditions evidence made no reference to returnees being harassed, tortured or
killed is patently wrong.
[16]
The
applicant submits that the officer was almost exclusively focused on
credibility in his seven paragraphs of reasons. The applicant argues a hearing
would have been appropriate given the officer’s concern with credibility. The
applicant furthers argues that Citizenship and Immigration Canada’s policy of
not considering sponsorship applications made after a PRRA application is
unfair and argues this process should be stayed until the sponsorship
application is disposed of.
Respondent’s Written Submissions
[17]
The
respondent argues that reasonableness is the applicable standard of review and
that the officer’s decision meets this standard. The officer noted the risks
identified by the applicant and considered the new evidence. It is not
necessary for the officer to refer to every piece of documentary evidence and
there is a presumption the officer has considered all such evidence. The respondent
further argues that no oral hearing was required and the applicant has not made
out a reasonable apprehension of bias.
Analysis and Decision
[18]
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).
[19]
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).
Similarly, the weighing, interpretation and assessment of evidence are
reviewable on a reasonableness standard (see Ipina v Canada (Minister of Citizenship and Immigration), 2011 FC 733, [2011] FCJ No 924 at paragraph 5;
and Oluwafemi v Canada (Minister of Citizenship and Immigration), 2009
FC 1045, [2009] FCJ No 1286 at paragraph 38).
[20]
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).
[21]
Issue 2
Did the
officer err in denying the application?
A negative
credibility determination is not the end of the analysis of whether a claimant
is a Convention refugee under the Act, whether such analysis is performed by
the RPD or by a PRRA officer. The claimant’s risk must be analyzed based on any
facts that have been accepted, even if the bulk of a claimant’s narrative is
rejected.
[22]
In
this case, the RPD accepted that the applicant was a Sri Lankan citizen and did
not question his Tamil ethnicity. It was also accepted by the officer that the
applicant would obviously be a failed refugee claimant if returned. The officer
was clearly wrong then to disregard the evidence submitted by the applicant
concerning the risks faced by Tamil men and failed refugee claimants on the
basis that it did not overcome the RPD’s negative credibility determination.
[23]
The
officer was similarly wrong to reject such evidence on the basis that it spoke
to the same risk that was alleged before the RPD; the entire point of new
evidence is that it requires a fresh determination, even if it relates to the same
issue that was before the Board.
[24]
The
officer devoted a single paragraph of analysis to the issue of new evidence
concerning the applicant’s risk profile, but only spoke to his status as a
failed refugee claimant. The officer did not address the risk the applicant
alleged he faced as a suspected LTTE sympathizer based on his ethnicity. The
Department of State report consulted by the officer, which post-dated the RPD
hearing, indicated that there were reports of suspected LTTE sympathizers having
been detained, tortured and killed.
[25]
The
officer is presumed to have considered all of the evidence before him (see Oprysk
v Canada (Minister of Citizenship and Immigration), 2008 FC 326 at
paragraph 33, [2008] FCJ No 411). However, the more important the evidence that
is not mentioned, the more willing a court may be to infer from silence that
the tribunal made a finding of fact without regard to the evidence (see Pinto
Ponce v Canada (Minister of Citizenship and Immigration), 2012 FC 181 at
paragraph 35, [2012] FCJ No 189).
[26]
Failing
to consider evidence relevant to the risk alleged goes to the heart of the PRRA
process. This omission rises to the level described in the cases above. Given
that omission, the officer’s decision is unreasonable.
[27]
Because
of my finding, I need not deal with the issues of bias or the oral hearing
argument.
[28]
The
application for judicial review is granted and the matter is referred to a
different officer for redetermination.
[29]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
[30]
The
affidavit of the applicant sworn on March 4, 2013 insofar as it contains
information not before the PRRA officer was not considered.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed 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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