Docket: IMM-4307-13
Citation:
2015 FC 292
Ottawa, Ontario, March 9, 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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SAYELLA SAKTHIVEL
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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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JUDGMENT AND REASONS
I.
Nature of the Matter and Background
[1]
Ms. Sakthivel [the Applicant] sought a permanent
resident visa as a Convention refugee abroad, but her application was refused
by an immigration officer [the Officer] at the High Commission of Canada in Singapore. She now applies for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act], asking the Court to
set aside the negative decision and refer the matter to a new officer with such
directions as the Court considers appropriate.
[2]
The Applicant is a 36-year-old Tamil woman from
Jaffna, in northern Sri Lanka, who alleges that she has a well-founded fear of
persecution in Sri Lanka. She therefore went to Malaysia in April, 2008, where
her status is precarious and the United Nations High Commissioner for Refugees
[UNHCR] determined in July, 2010, that she was not a Convention refugee. Her
parents and sister were originally with her in Malaysia, but they have since
immigrated to Canada and are now permanent residents. The Applicant also tried
to immigrate to Canada as a skilled worker, but her application was denied
since her English-language ability was insufficient.
[3]
However, the Applicant had friends and family in
Canada who were willing to sponsor her and their bid to do so was approved on
January 20, 2010. With that support, the Applicant applied for permanent
residence in Canada on March 12, 2010. Although she checked off the box
indicating that she was applying as a member of the family class, her
application was accompanied by the forms used to apply as a refugee outside Canada or as a member of the country of asylum class and that is how her application was
processed. The Applicant was eventually interviewed on February 27, 2013.
II.
Decision under Review
[4]
By letter dated May 29, 2013, the Officer
refused Ms. Sakthivel’s application. After noting that the claim was governed
by sections 145 and 147 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [Regulations], the Officer wrote that “I am not satisfied, on balance, that you have established a
well-founded fear of persecution or that you have been seriously and personally
affected by a civil war, armed conflict, or a massive violation of human rights.”
[5]
More detailed reasons for the Officer’s decision
were recorded in the Global Case Management System [GCMS] on May 28, 2013,
wherein the Officer noted that the Applicant originally left Sri Lanka because of problems related to the armed conflict between the government and the
Liberation Tigers of Tamil Eelam. As that war was over, the Officer did not
consider the Applicant’s continued reluctance to return to be “reasonable grounds to believe that this is a well-founded
fear of persecution.” Nor was it ever, according to the Officer, since
the Applicant’s accounts of receiving threatening messages and witnessing
shelling did not rise to that level, and her alleged fear that the government
would persecute her was undermined by the fact that she had worked for the
government for six months.
[6]
Furthermore, the Officer believed that Colombo was a reasonable internal relocation alternative, as the Applicant had lived there
from 1996 to 2008, mostly independently, and there was no reason to believe she
could not do so again. Although her immediate family now lived in Canada, the Officer noted that she still has an aunt living in Sri Lanka who may be able to help her
re-establish herself.
[7]
The Officer was also unconvinced that the
Applicant was a member of the country of asylum class prescribed by section 147
of the Regulations, which only applies when foreign nationals “have been, and continue to be, seriously and personally
affected by civil war, armed conflict or massive violation of human rights.”
Again, the Officer noted that the civil war had ended, and while there are
still human rights violations in Sri Lanka, the Officer did not think there was
enough evidence to show either that they were massive or that they seriously
affected the Applicant.
[8]
Finally, the Officer considered whether to grant
protection under subsection 108(4) of the Act, which applies when
there are “compelling reasons” arising out of
previous persecution, torture, treatment or punishment for a claimant refusing
to avail themselves of the protection of the country which they left.
Ultimately, the Officer decided that the incidents described by the Applicant
did not meet that threshold.
III.
The Parties Submissions
A.
The Applicant’s Arguments
[9]
The Applicant notes that there are several
oblique references to “country of origin information”
and a UNHCR document in the GCMS notes that are not part of the certified
tribunal record. According to the Applicant, the absence of any citation to the
country condition documentation referred to by the Officer is a “glaring problem” and a fatal error. The Applicant
says that the Officer’s decision-making processing needs to be transparent.
[10]
Moreover, the Applicant argues that not
disclosing that information to the Applicant was unfair (relying on Ha v
Canada (Minister of Citizenship and Immigration), 2004 FCA 49, [2004] 3 FCR
195, and Muliadi v Canada (Minister of Employment and Immigration),
[1986] 2 FCR 205, 66 NR 8 (CA)). The Applicant submits that she was entitled to
know the case to meet, and although it is unclear what country documentation the
Officer relied on, the Applicant says that the most recent information from
UNHCR certainly demonstrates risk for the Applicant should she be returned to
Sri Lanka.
[11]
Furthermore, the Applicant contends that the
Officer misstated the test for a well-founded fear of persecution by requiring
that there be “reasonable grounds to believe that this
is a well-founded fear of persecution”. This represents a higher
standard than what the Applicant should need to establish (citing Mugesera v
Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at paragraphs
114-117, [2005] 2 S.C.R. 100 [Mugesera]). Rather, the Applicant contends
that the “proper test is that of reasonable chance or
good grounds that persecution will occur” (citing Krishnapillai v
Canada (Minister of Citizenship and Immigration), 2005 FC 244 at paragraph
10 [Krishnapillai]).
[12]
The Applicant urges the Court to adhere to
previous standards and states that the Officer’s use of “reasonable grounds” is not one of the accepted
standards by which the Applicant’s fear of persecution should be assessed.
According to the Applicant, this aspect of the Officer’s decision is reviewable
upon a standard of correctness, in that it was incumbent upon the Officer to
select and understand the correct test.
[13]
The Applicant argues that the above errors also
taint the Officer’s findings about the country of asylum class under section
147 of the Regulations, and whether there were compelling grounds to
grant refugee status for past persecution under subsection 108(4) of the Act.
[14]
The Applicant also complains that the Officer
did not explain why receiving threatening messages was not persecutory or why
working for the government for six months undermined her claim.
[15]
With respect to an internal flight alternative
[IFA], the Applicant points out that there is no evidence about where the
Applicant’s aunt lives in Sri Lanka and, in any event, the Officer’s errors in
assessing the Applicant’s fear of persecution undermine the finding of an IFA.
According to the Applicant, it is not reasonable to say there is an IFA in
Colombo just because she has an aunt living somewhere in Sri Lanka.
B.
The Respondent’s Arguments
[16]
The Respondent emphasizes that this is a visa
officer’s decision, not a decision by the Refugee Protection Division [RPD]. Accordingly,
the level of procedural fairness required in reviewing such a decision is at a
lower level. The Respondent says that even if the standard of fairness here may
be somewhat elevated, given the effect of the decision upon the Applicant, the
Officer here fairly assessed the Applicant’s application. The Respondent argues
that the Officer had no duty to disclose the UNHCR report, since the Applicant
was told about the pertinent concerns and had sufficient opportunity to
respond.
[17]
The Respondent argues that the standard of
review for the other issues in this case is reasonableness, which means that
the reasons need only be transparent, justifiable, and intelligible (citing Nabizadeh
v Canada (Citizenship and Immigration), 2012 FC 365 at paragraph 28, 407
FTR 74 [Nabizadeh]; Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 47,
[2008] 1 S.C.R. 190 [Dunsmuir]; Alberta (Information and Privacy
Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at paragraph 30,
[2011] 3 S.C.R. 654 [Alberta Teachers]).
[18]
The Respondent argues that those criteria are
even more relaxed when an officer’s notes are being assessed. According to the
Respondent, it is enough if the reasons disclose the officer’s findings of fact,
the principal evidence upon which those findings are based, the major issues,
and the reasoning process that resolves those issues (citing Dunsmuir at
paragraph 49; Ozdemir v Canada (Minister of Citizenship and Immigration),
2001 FCA 331 at paragraph 11, 282 NR 394; Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paragraph
16, [2011] 3 S.C.R. 708; VIA Rail Canada Inc v National Transportation Agency (2000),
[2001] 2 FCR 25 at paragraph 22, 193 DLR (4th) 357). The Respondent also adds
that the Court should try to supplement reasons before criticizing them.
[19]
In this case, the Respondent argues that all of
the necessary elements are present in the decision. It is clear that the
Officer accepted the Applicant’s accounts of what happened to her, but simply
decided that the threats were not serious. Given that, the Respondent says it
is plain enough why they did not amount to persecution, which requires a “sustained or systemic violation of basic human rights”
(citing Canada (AG) v Ward, [1993] 2 S.C.R. 689 at 733, 103 DLR (4th) 1). Specifically,
the Respondent argues that the Applicant’s claim was weak since the only direct
link to the Applicant’s fear of persecution was in respect of the failed
kidnapping of her sister and the subsequent threatening messages. In addition,
the Respondent points out that there has been nothing directly affecting the
Applicant for several years.
[20]
As for the finding that the Applicant’s
employment with the government undermined her claim, the Respondent says that
this is a minor point and, in any event, it was reasonable for the Officer to
find that such employment detracted from her claim of persecution. According to
the Respondent, this is a common sense conclusion by the Officer, since if the
government had hired her, why would it then persecute her?
[21]
The Respondent also defends the Officer’s
decision that Colombo is an IFA. The Respondent says that the Officer’s reasons
and decisions in this regard were reasonable. The Applicant had lived in Colombo for 12 years. According to the Respondent, the Officer’s observation that the
Applicant’s aunt lived in Sri Lanka was unconnected to the finding that Colombo
was an IFA, so it does not matter where she lived. Nor did it matter that the
Applicant was threatened in Colombo since the Officer had found that those
threats were not persecutory.
[22]
The Respondent argues that the Officer did not
misstate the test. By referring to “reasonable grounds”
to believe that there is a well-founded fear of persecution, the Respondent
claims that the Officer was referring not to the standard of proof but to the
evidentiary burden. In its view, the standard of a serious possibility of
persecution is embedded within the phrase “well-founded
fear,” and it is not an error for the Officer here to use the actual
words of the statute to express the standard of proof. The Respondent adds that
what matters is how the test was applied, not how clearly it was articulated
(citing Janagill v Canada (Minister of Citizenship and Immigration),
[1998] FCJ No 587 (QL) at paragraphs 4-6 (TD)).
[23]
Finally, the Respondent argues that the
Applicant’s assertions about the country of asylum class under section 147 of
the Regulations and compelling reasons under subsection 108(4) are
devoid of both facts and arguments. The Respondent states that this is not the
sort of case where such compelling circumstances would arise. According to the
Respondent, the Applicant just being scared of the army is not sufficient,
although it may be something to consider with respect to her subjective fear of
persecution. The Respondent says one needs to look at the facts as a whole to
assess any compelling reasons, and before there can be such compelling reasons,
there needs to be a finding of persecution. Since there was no finding of
persecution here, there should be and could be no consideration of any
compelling reasons.
IV.
Issues and Analysis
A.
Issues
[24]
Four issues emerge from the parties’ submissions:
(1) what is the standard of review; (2) did the Officer apply the correct
test in assessing whether the Applicant’s fear of persecution was well-founded;
(3) was it unfair for the Officer not to disclose to the Applicant the country
of origin information and UNHCR document referred to in the GCMS notes; and (4)
was the Officer’s decision reasonable?
B.
Standard of Review
[25]
The Respondent argues that the Court should
apply the reasonableness standard when assessing whether the Officer understood
the standard of proof under section 96 of the Act, since the Officer was
ostensibly interpreting a home statute (Alberta Teachers at paragraph
30). That position finds some general support in the case law (see e.g. Dusabimana
v Canada (Citizenship and Immigration), 2011 FC 1238 at paragraph 21 [Dusabimana];
Nabizadeh at paragraph 27); but other cases have reached opposite
conclusions and applied a correctness standard (see e.g. Ghirmatsion v
Canada (Citizenship and Immigration), 2011 FC 519 at paragraph 49, [2013] 1
FCR 261; Kumarasamy v Canada (Citizenship and Immigration), 2010 FC 203
at paragraphs 8, 12).
[26]
Despite this divergence in the case law, the
fact of the matter is that, at least when it comes to pre-removal risk
assessments [PRRAs] and decisions of the RPD, this Court has insisted that such
decision-makers apply the correct standard of proof under section 96 (see e.g. Arias
v Canada (Citizenship and Immigration), 2010 FC 1029 at paragraphs 10-11; Awadh
v Canada (Citizenship and Immigration), 2014 FC 521 at paras 13, 15; Talipoglu
v Canada (Citizenship and Immigration), 2014 FC 172 at paragraphs 22, 24,
23 Imm LR (4th) 147). It would make no sense for the Court to defer to a visa
officer’s interpretation of section 96 when it does not do so in respect of the
RPD’s interpretation.
[27]
As for why the Court has departed from the
general rule in Alberta Teachers, several reasons may be offered,
including:
1.
Section 96 of the Act directly implements
Canada’s international obligations under the Convention Relating to the
Status of Refugees, 28 July 1951, 189 UNTS 150, Can TS 1969 No 6, which
should be interpreted as uniformly as possible (Febles v Canada (Citizenship
and Immigration), 2012 FCA 324 at paragraph 24, [2014] 2 FCR 224, aff’d
2014 SCC 68, 376 DLR (4th) 387; Canada (Citizenship and Immigration) v A011,
2013 FC 580 at paragraph 49, 433 FTR 229; B010 v Canada (Citizenship and
Immigration), 2013 FCA 87 at paragraph 71, 359 DLR (4th) 730 [B010]);
2.
The jurisprudence has already settled on clear
legal tests which it would make no sense to randomly disturb (Ruszo v Canada
(Citizenship and Immigration), 2013 FC 1004 at paragraphs 17-20, 440 FTR 106);
3.
Since paragraph 74(d) of the Act
expressly gives the courts a supervisory role by permitting appeals when they
raise serious questions of general importance, such authority could serve no
purpose unless Parliament expected the courts to give a definitive
interpretation of important statutory provisions (see e.g. Pushpanathan v
Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at
paragraph 43, 160 DLR (4th) 193; Kanthasamy v Canada (Citizenship and
Immigration), 2014 FCA 113 at paragraphs 32, 35-36, 372 DLR (4th) 539; but
see B010 at paragraphs 68-70); and
4.
Section 96 of the Act is applied by many
different decision-makers, including PRRA officers, officers assessing
Convention refugee abroad applications, the RPD, and the Refugee Appeal
Division. Parliament must have intended that these decision-makers apply the
same tests, and review on the correctness standard is the only way to ensure
that they do.
[28]
The foregoing rationales are not so manifestly
wrong that they justify derogation from the principle of judicial comity (see
e.g. Alyafi v Canada (Citizenship and Immigration), 2014 FC 952 at
paragraphs 43-45; Apotex Inc v Allergan Inc, 2012 FCA 308 at paragraphs
43, 47-48, 440 NR 269). In my view, the standard of review has been satisfactorily
decided and need not be revisited (Dunsmuir at paragraphs 57, 62) and, consequently,
the correctness standard applies to whether the Officer understood the standard
of proof under section 96. Thus, the Court “will not
show deference to the decision maker’s reasoning process; it will rather
undertake its own analysis of the question”: Dunsmuir at
paragraph 50.
[29]
Correctness is also the standard for reviewing
whether it was unfair for the Officer not to disclose to the Applicant the
country of origin information and UNHCR document referred to in the GCMS notes
(Mission Institution v Khela, 2014 SCC 24 at paragraph 79, [2014] 1 SCR
502; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at
paragraph 43, [2009] 1 S.C.R. 339 [Khosa]). Persons affected by a decision
must receive every procedural protection to which they are entitled, but relief
may be withheld if any error “is purely technical and
occasions no substantial wrong or miscarriage of justice” (Khosa
at paragraph 43; Federal Courts Act, RSC 1985, c F-7, s 18.1(5)).
[30]
The standard of review applicable to whether a
claimant is a member of the Convention refugee abroad class is a factual
determination to be evaluated on the standard of reasonableness (see: Bakhtiari
v Canada (Citizenship and Immigration), 2013 FC 1229 at paragraph 22; Dusabimana
at paragraph 20). It is well established that the standard of
reasonableness is concerned not only with the existence of justification,
transparency and intelligibility within the decision-making process, but also
with whether the decision under review falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and the law. It
is not up to this Court to reweigh the evidence that was before the Officer,
and it is not the function of this Court upon judicial review to substitute its
own view of a preferable outcome (Dunsmuir at paragraphs 47-48; and Khosa
at paragraphs 59 and 61).
C.
Did the Officer apply the correct test in
assessing whether the Applicant’s fear of persecution was well-founded?
[31]
In the GCMS notes, the Officer states, in part,
as follows:
ASSESSMENT:
...I do not find sufficient evidence in the
application, the applicant’s responses or country of origin information which
demonstrates reasonable grounds for a well-founded fear of persecution
on the basis of any of the Convention grounds.
Therefore, having considered all of the
evidence before me, I am not satisfied that reasonable grounds exist to
find the applicant a member of the Convention Refugee class or the Country of
Asylum class. I am therefore refusing this application.
[Emphasis added]
[32]
The Respondent argues that the Officer did not
misstate or misapply the test for assessing whether the Applicant’s fear of
persecution was well-founded, and that the standard of a serious possibility of
persecution is embedded within the phrase “well-founded
fear.” I reject this argument in view of Adjei v Canada (Minister of
Employment and Immigration), [1989] 2 FCR 680 at 683, 57 DLR (4th) 153 (CA)
[Adjei], where the Federal Court of Appeal stated:
What is evidently indicated by phrases such
as "good grounds" or "reasonable chance" is, on the one
hand, that there need not be more than a 50% chance (i.e., a probability), and
on the other hand that there must be more than a minimal possibility. We
believe this can also be expressed as a "reasonable" or even a
"serious possibility", as opposed to a mere possibility.
[33]
This passage from Adjei has been
expressly endorsed in Chan v Canada (Minister of Employment and Immigration),
[1995] 3 S.C.R. 593 at paragraph 120, 128 DLR (4th) 213 [Chan] , where the
Supreme Court of Canada stated its preference for the term “serious possibility”:
…In the specific context of refugee
determination, it has been established by the Federal Court of Appeal in Adjei
v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680, that
the claimant need not prove that persecution would be more likely than not in
order to meet the objective portion of the test. The claimant must establish,
however, that there is more than a "mere possibility" of
persecution. The applicable test has been expressed as a "reasonable
possibility" or, more appropriately in my view, as a "serious
possibility". See: R. v. Secretary of State for the Home Department,
ex parte Sivakumaran, [1988] 1 All E.R. 193 (H.L.).
[34]
The Respondent further argues that “reasonable grounds” is ultimately identical to the
standard set out in Adjei and Chan. In a different context, the
Supreme Court defined it in a similar way, saying that “the
‘reasonable grounds to believe’ standard requires something more than mere
suspicion, but less than the standard applicable in civil matters of proof on
the balance of probabilities” (Mugesera at paragraph 114). While that
is an attractive argument, the fact is that there is no way to determine or
ascertain whether that is actually what the Officer meant. The Court is not a
mind reader and can only review and examine the words the Officer actually
used.
[35]
The standard of proof for section 96 has been
established for two decades and already has several synonyms. I see no reason
or need to endorse another one. An officer deciding a refugee claim should be
familiar with the leading cases from the Federal Court of Appeal and the Supreme
Court of Canada, especially on such a basic and well-established question of
law as the standard of proof for purposes of section 96 of the Act.
[36]
Ultimately, the Officer’s use of a test or
standard of “reasonable grounds” for the
threshold of risk in relation to a claim for protection under section 96 of the
Act is incorrect. The Officer’s decision in this regard is therefore
much like that reviewed by the Court in Krishnapillai at paragraph 12, where
Mr. Justice Richard Mosley determined that “[o]n the
face of the decision letter, the officer applied the incorrect standard and I
am not satisfied that she had the correct standard in mind when she arrived at
her decision.”
[37]
Here too, an incorrect standard was stated by
the Officer and the Court is not satisfied that he or she had the correct standard
in mind. This conclusion is sufficient to allow the application for judicial
review and, consequently, it is not necessary to address the third and fourth
issues stated above.
[38]
Before leaving this issue, I recognize that the “reasonable grounds” formulation was not repeated in
the generic decision letter itself, the second page of which instead stated
that the Officer was “not satisfied that there is a
reasonable chance or good grounds that you are a member of any of the classes
prescribed.” However, the GCMS notes imply that the Officer never
actually wrote that letter, since the final sentence by the Officer in the GCMS
notes was: “VON please draft Re-17 refusal letter.”
The next entry in such notes stating that the refusal letter was sent by
registered mail was entered by someone with the initials “VON,” which were different from the Officer whose initials
were “RSP.”
V.
Proposed Question for Certification
[39]
At the hearing of this matter it was determined
that the parties would submit post-hearing written submissions addressing the
issue of “reasonable grounds” and propose any serious
question of general importance for certification with respect to this issue. The
Respondent declined to submit any such question. The Applicant did so but only in
case the Respondent’s arguments on this issue were persuasive and dispositive.
Accordingly, since the Respondent did not propose a serious question of general
importance, no such question will be certified.
VI.
Conclusion
[40]
In the result, therefore, the application for
judicial review is hereby allowed and the matter is returned for
re-determination by a different immigration officer, with leave to the
Applicant to file such further information and documentation upon such re‑determination
as she considers appropriate.
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