Docket: IMM-7904-14
Citation:
2015 FC 829
Montréal, Quebec, July 7, 2015
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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NUWAN DILUSHA
JAYAMAHA MUDELIGE DON
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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.
Overview
... Being unconvinced by the evidence
before him or her because of its low probative value is not the same as a PRRA
Officer questioning an applicant's credibility: Ferguson at
paragraph 33. It is well-established that oral hearings in PRRA applications
are required only in exceptional circumstances: Sufaj at paragraph
41; Khatun v Canada (Citizenship and Immigration), 2012 FC 997 at
paragraph 22; Tran v Canada (Public Safety and Emergency Preparedness),
2010 FC 175 at paragraph 28. [Emphasis added.]
(Aboud v Canada (Minister of Citizenship
and Immigration), 2014 FC 1019 at para 35 [Aboud])
II.
Introduction
[1]
Pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], the Applicant
challenges a negative pre-removal risk assessment [PRRA] decision rendered by a
Senior Immigration Officer [officer] on August 29, 2014, whereby the
officer found that the Applicant would not be subject to risk of persecution or
torture, risk to life or risk of cruel and unusual treatment or punishment upon
return to Sri Lanka.
[2]
For the following reasons, the application for
judicial review is dismissed.
III.
Factual and Procedural Background
[3]
The Applicant is a 33-year-old citizen of Sri
Lanka who claims that he is persecuted by the police, government and armed
groups of Sri Lanka on the basis that he is an eyewitness to a police shooting
leading to the death of Roshan Chanaka at a peaceful protest of a government proposed
private pension bill on May 30, 2011, which led to the condemnation of the
Sri Lankan government for its use of violence against protestors.
[4]
The Applicant left Sri Lanka and worked aboard a
cargo ship as a crew member on the M/V Lake Ontario, which arrived in Oshawa,
Ontario, on November 27, 2011.
[5]
On December 1, 2011, the Applicant deserted
the ship and traveled to Montréal. The next day, a Notice of Desertion was
filed against the Applicant.
[6]
On December 13, 2011, the Applicant was
issued an exclusion order under subsection 44(2) of the IRPA on the ground that
he failed to comply with the requirement that he leave Canada within 72 hours
after ceasing to be a member of a crew, provided in subsection 184(1) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [IRPR].
[7]
On December 16, 2011, the Applicant claimed
refugee protection but was later advised that he could not claim refugee status
because of the exclusion order made against him in December 2011.
[8]
On January 3, 2013, the Applicant
successfully challenged the removal order before the Federal Court (Don v
Canada (Minister of Citizenship and Immigration), 2013 FC 1); however, the
decision was overturned by the Federal Court of Appeal on January 10, 2014
(Don v Canada (Minister of Citizenship and Immigration), 2014 FCA 4 [Don]).
IV.
Impugned Decision
[9]
In its reasons dated August 29, 2014, the
officer first addresses the new evidence adduced by the Applicant.
[10]
The officer attributes little weight to the
letters from the Applicant’s lawyer in Sri Lanka, from Mr. A. Siritunga Silva,
from Rev. Fr. B.L.D. Amon Premala, and from A.D.A.C. Jayakody of the Negombo
Municipal Council, by finding that the letters lack detail in respect to the
Applicant’s alleged risks. Moreover, the officer questions the genuineness of
the letters, of which only copies were provided.
[11]
The officer also attributes little value to the
medical note by Dr. J.M. Weerasundara Bandara attesting to injuries sustained
by the Applicant, due to its lack of detail in respect of the observed injuries
and their potential causes. The officer also observes that the Applicant failed
to explore the options available to him in order to obtain his medical records,
such as contacting the clinic directly.
[12]
The officer then analyzes the letter from the Applicant’s
mother and concludes that it lacks sufficient detail and it does not stem from
an objective source. As to the photographs, the officer concludes that the
individuals portrayed are not formally identified, nor is it apparent that the
injuries result from targeted attacks stemming from the Applicant’s persecution.
[13]
The officer then considers the articles detailing
the police shooting of Roshan Chanaka which took place on May 30, 2011,
during the Katunayake Free Trade Zone protest. The officer acknowledges that
the protest took place and that Roshan Chanaka died as a result of violence
used by the police; however, the officer finds that the articles fail to link
the Applicant to Roshan Chanaka, to the protest itself, or to the subsequent
lawsuit launched against the Sri Lankan government. In addition, the evidence does
not support the finding that the Applicant was an eyewitness to Roshan
Chanaka’s death or that he provided a testimony in this respect.
[14]
The officer also considers the evidence
pertaining to the risk alleged by the Applicant upon his return to Sri Lanka,
which includes country reports and news articles in respect of human rights
violations in Sri Lanka. The officer finds that the evidence does not
demonstrate the risk alleged by the Applicant is due to his imputed political
opinion or his involvement in the lawsuit against the government.
[15]
Moreover, the officer concludes that the
Applicant failed to demonstrate persecution on the basis of his membership in
the social group of returning refugee claimants or that he is part of one of
the categories of persons at risk characterized in the updated United
Kingdom Home Office Operational Guidance Note, dated July 2013.
V.
Legislative Provisions
[16]
Subsections 112(1) and 113(a) of the IRPA
govern the officer’s PRRA determination:
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Application for protection
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Demande de protection
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112. (1) A person in Canada, other
than a person referred to in subsection 115(1), may, in accordance with the
regulations, apply to the Minister for protection if they are subject to a
removal order that is in force or are named in a certificate described in
subsection 77(1).
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112.
(1) La personne se trouvant au Canada et qui n’est pas visée au paragraphe
115(1) peut, conformément aux règlements, demander la protection au ministre
si elle est visée par une mesure de renvoi ayant pris effet ou nommée au
certificat visé au paragraphe 77(1).
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Consideration of application
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Examen de la demande
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113. Consideration of an application
for protection shall be as follows:
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113. Il
est disposé de la demande comme il suit :
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(a) an applicant whose claim to refugee protection has been
rejected may present only new evidence that arose after the rejection or was
not reasonably available, or that the applicant could not reasonably have
been expected in the circumstances to have presented, at the time of the
rejection;
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a) le
demandeur d’asile débouté ne peut présenter que des éléments de preuve
survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles
ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances,
de s’attendre à ce qu’il les ait présentés au moment du rejet;
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VI.
Issues
[17]
The Applicant submits the following issues
before the Court:
a)
The Applicant was denied the right to a hearing
for his claim to protection, which is a breach of procedural fairness;
b)
The officer made an unfair, discriminatory and
unreasonable assessment of the evidence;
c)
The officer failed to adequately consider the
risk faced by the Applicant upon return to Sri Lanka.
[18]
It is the Court’s view that the two first issues
can be merged into one issue and that the issues raised by the application are
as follows:
a)
Did the officer breach his duty of procedural
fairness by refusing to hold a hearing?
b)
Is the officer’s decision in respect of the
evidence reasonable?
VII.
Applicant’s Position
[19]
First, the Applicant submits that the officer
had a duty to hold a hearing insofar as credibility was a key issue in the
officer’s determination of the Applicant’s PRRA and as the Applicant was not
afforded a hearing before the Refugee Protection Division [RPD].
[20]
Second, the Applicant contends that the
officer’s decision failed to follow the guidelines established in the UNHCR
Handbook and Guidelines on Procedures and Criteria for Determining Refugee
Status, and in particular, paragraph 196, which provides as follows:
196. It is a general legal principle
that the burden of proof lies on the person submitting a claim. Often, however,
an applicant may not be able to support his statements by documentary or other
proof, and cases in which an applicant can provide evidence of all his
statements will be the exception rather than the rule. In most cases a person
fleeing from persecution will have arrived with the barest necessities and very
frequently even without personal documents. Thus, while the burden of proof in
principle rests on the applicant, the duty to ascertain and evaluate all the
relevant facts is shared between the applicant and the examiner. Indeed, in
some cases, it may be for the examiner to use all the means at his disposal to
produce the necessary evidence in support of the application. Even such
independent research may not, however, always be successful and there may also
be statements that are not susceptible of proof. In such cases, if the
applicant’s account appears credible, he should, unless there are good reasons
to the contrary, be given the benefit of the doubt.
[21]
In particular, the Applicant submits that the
officer ignored the inherent difficulties in obtaining evidence in a climate of
fear of reprisals and reviewed the Applicant’s evidence with skepticism and
with a lack of sensibility.
[22]
Third, the Applicant submits that the officer
failed to adequately assess the objective country condition evidence exhibiting
the climate of disappearances, terrorism, political crimes and prevailing
impunity in Sri Lanka. The Applicant contends that the threats to his life
arising from his outspokenness against the government were not seriously
considered by the officer.
VIII.
Standard of Review
[23]
The standard of review applicable to the
officer’s determination of the Applicant’s PRRA application is that of
reasonableness (Aboud, above at para 17; Kovacs v Canada (Minister of
Citizenship and Immigration), [2010] FCJ 1241 at para 46; Aleziri v
Canada (Minister of Citizenship and Immigration), [2009] FCJ 52 at para
11).
[24]
The Court’s inquiry must be deferential and
focus on the “existence of justification, transparency
and intelligibility within the decision-making process” (Dunsmuir v
New Brunswick, [2008] 1 S.C.R. 190 at para 47).
[25]
Issues of procedural fairness and natural
justice, including the right to a hearing, are reviewable on the standard of
correctness (Mission Institution v Khela, 2014 SCC 24 at para 79).
IX.
Analysis
A.
Procedural fairness
[26]
The Applicant argues that the officer breached
his duty of procedural fairness by refusing to hold a hearing.
[27]
In accordance with section 113 of the IRPA and
subsection 161(1) of the IRPR, a PRRA is ordinarily made on the basis of
written submissions; however, an oral hearing may be held when the factors
established in section 167 of the IRPR are met (Islam v Canada (Minister of
Citizenship and Immigration), [2008] FCJ 1614 at para 8).
[28]
The Applicant contends that he was not afforded
an opportunity to be heard because an exclusion order was made against him
before he had the opportunity to claim refugee status.
[29]
This issue has been settled by the Federal Court
of Appeal in a previous proceeding involving the Applicant, wherein the Federal
Court of Appeal found that the issuance of a removal order pursuant to
subparagraph 228(1)(c)(v) of the IRPR before a member of a crew subject
to a removal order has had the opportunity to claim refugee status does not
constitute a breach of procedural fairness. The Federal Court of Appeal further
stated that the Applicant’s behaviour was incompatible with the exercise of the
right to be heard:
[44] There is no question that the
Minister's delegate was entitled to issue a removal order on December 13, 2011
since more than 72 hours had elapsed from the time when the respondent deserted
his ship, and in these circumstances, subparagraph 228(1)(c)(v) of the
Regulations expressly provides for the issuance of a removal order. It is also
uncontested that the respondent thereby lost his eligibility to claim refugee
status since subsection 99(3) of the Act so provides.
[45] The only issue therefore is
whether the Minister's delegate could issue the removal order on December 13,
2011, without having first given the respondent an opportunity to be heard or
attempting to contact him. In disposing of the question, I am willing to
accept that, as the Federal Court judge found, the respondent was entitled to
be notified of the subsection 44(1) report and be given an opportunity to
object to the issuance of a removal order (reasons, para. 33). However, in
order to benefit from these rights, it was incumbent upon the respondent to
place himself in a position where he could be notified.
[46] Upon deserting the ship, the
respondent ceased to have any status in Canada and had the obligation to leave
within 72 hours. Failing this, he had the obligation to report for examination
before an immigration officer in order to regularize his status (subsection
184(1) of the Regulations and subsections 29(2) and 18(1) of the Act). As
noted, he did not do so until fifteen days had passed.
[47] Beyond remaining outside the reach
of immigration officials from the time he deserted until December 16, 2011, the
respondent had no known address in Canada. The evidence reveals that he
travelled from Oshawa to Montreal on December 1, 2011, where he remained until
he made contact with the authorities, but there is no indication as to his
whereabouts in Montreal during that period.
[48] In my view, a person in the
position of the respondent who challenges a decision on the basis that it was
rendered without prior notification must be able to show that he was capable of
being notified. At minimum, this requires that the person provides immigration
authorities with some means of being reached in Canada. The decision of
this Court in Cha on which the Federal Court judge placed great reliance
must be read in light of the fact that the coordinates of the person concerned
in that case were known and therefore the person was capable of being notified.
[49] In the present case, not only
were no such means provided, but the respondent was intent on remaining
undetected by the immigration authorities until he was satisfied that the ship
which he deserted had left Canada. This is incompatible with the exercise of
the right to be heard. Given the respondent's behaviour, I do not see how the
Minister's delegate can be held to have issued the removal order in breach of
his right to be heard.
[Emphasis added.]
(Don, above, at paras 44 to 49)
[30]
While recognizing that the Applicant did not
benefit from an oral hearing before the RPD, in light of the decisions of Don
and Aboud, above, the Court does not find that the Applicant was denied
procedural fairness by the PRRA officer’s refusal to grant him an oral hearing.
B.
Reasonableness of the officer’s assessment of
the evidence and decision as a whole
[31]
It is apparent from the officer’s decision and
reasons that his findings and ultimate refusal of the Applicant’s PRRA is
anchored in the evidentiary record. The impugned decision is reasonable and
does not merit the Court’s intervention.
[32]
First, the Court does not find that the officer
erred in his findings of fact, which lie at the very core of the officer’s
expertise (Jaouadi v Canada (Minister of Public Safety and Emergency
Preparedness), [2006] FCJ 1934 at para 21).
[33]
Second, in his reasons, the officer directly
considers and weighs the subjective and objective documentary evidence
submitted by the Applicant, including evidence pertaining to country
conditions, human rights abuses, and the treatment of individuals who speak out
against police brutality in Sri Lanka.
X.
Conclusion
[34]
Having carefully considered the parties’ written
and oral submissions, the Court concludes that the application for judicial
review must be dismissed.
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