Docket: IMM-8327-14
Citation:
2015 FC 1005
Ottawa, Ontario, August 25, 2015
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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SASIKUMAR
SANDIRASEKARAM
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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
[1]
Sasikumar Sandirasekaram is a young Tamil male
from northern Sri Lanka who traveled to Canada on board the MV Sun Sea.
The Refugee Protection Division of the Immigration and Refugee Board rejected
his refugee claim, finding that his evidence of past persecution based upon his
perceived connection to the Liberation Tigers of Tamil Eelam (LTTE) was not
credible. The Board was also not persuaded that he would now be at risk of
persecution in Sri Lanka as a result of his travel to Canada on the MV Sun
Sea. This Court denied Mr. Sandirasekaram leave to judicially review
the Board’s decision.
[2]
A Pre-removal Risk Assessment Officer
subsequently found that Mr. Sandirasekaram had not established that he
would be at risk if he were returned to Sri Lanka. For the reasons that follow,
I have concluded that the Officer properly understood her jurisdiction, and
that the decision was one that was reasonable for the Officer to make on the
record before her. As a result Mr. Sandirasekaram’s application for judicial
review will be dismissed.
I.
Did the PRRA Officer Misunderstand her
Jurisdiction?
[3]
Mr. Sandirasekaram submits that the PRRA
officer erred by finding that the Refugee Protection Division’s decision is
final, subject only to it being established that he faced a “new, different or additional risk”. According to
Mr. Sandirasekaram, this statement demonstrates that the officer did not
understand that the risk asserted in a PRRA could be the same risk as had been
considered by the Board, if the applicant is able to adduce new evidence
showing a worsening of country conditions since the date of the Board’s
decision. An applicant could also adduce new evidence to rehabilitate evidence
that the Board had found not to be credible.
[4]
I do not agree that the Board erred as alleged
by Mr. Sandirasekaram. The phrase “new, different
or additional risk” that was used by the PRRA Officer was taken from
this Court’s decision in Perez v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1379, 59 Imm. L.R. (3d) 156. There, Justice Snider
noted that a PRRA is not an appeal of a Board decision, and is not an
opportunity to re-argue the facts that were considered by the Board. She went
on, however, to cite the example of a worsening of country conditions as being
precisely the sort of thing that could be considered by a PRRA officer based
upon new evidence: Perez, para. 5.
[5]
That is, while a “new”
or “different” risk would be one that had not
previously been considered by the Refugee Protection Division, when read in
context, an “additional risk” clearly refers to
additional risk developments in relation to a previously-asserted risk. As a
consequence, I am satisfied that the PRRA Officer correctly understood her
jurisdiction and did not err in this regard.
II.
Did the PRRA Officer Err in her Treatment of the
New Evidence?
[6]
Mr. Sandirasekaram submits that the PRRA
officer also erred in her treatment of the new evidence that he had adduced in
support of his PRRA application. This consisted of an affidavit from
Mr. Sandirasekaram’s father, who is still in Sri Lanka.
[7]
Much of the father’s affidavit provided
background information regarding the conflict in Sri Lanka, along with a
description of Mr. Sandirasekaram’s experiences while he was still in that
country. The PRRA Officer found that this was not new evidence. This is a
reasonable finding as these events pre-dated the Board’s decision, and no
explanation was provided as to why Mr. Sandirasekaram could not have
obtained an affidavit from his father in support of his claim for refugee protection.
[8]
The PRRA Officer did note that there were
differences between Mr. Sandirasekaram’s version of the events leading up
to his departure from Sri Lanka and that provided by his father, specifically
in relation to the nature of Mr. Sandirasekaram’s contact with Sri Lankan
authorities in 2008. Mr. Sandirasekaram argues that the PRRA Officer erred
by fixating on microscopic inconsistencies in the evidence. I do not agree that
the Officer erred as alleged.
[9]
The Officer did not find that there were actual
inconsistencies in the evidence of the two men, nor did she draw any
conclusions in this regard. Rather, she simply observed that their versions of
the events in issue were somewhat different. Mr. Sandirasekaram provided a
more detailed description of these events than did his father. The PRRA Officer
focussed on Mr. Sandirasekaram’s version, and quite reasonably questioned
why he had not raised incidents mentioned by his father at his refugee hearing.
[10]
The PRRA Officer also questioned why Sri Lankan
authorities would have released Mr. Sandirasekaram after questioning him
in 2008 and 2009 if they truly suspected him of having LTTE connections.
Mr. Sandirasekaram submits that the PRRA Officer was speculating about the
motives of the Sri Lankan authorities, and that there was no evidence in the
record to support this finding. However, Mr. Sandirasekaram himself
asserted that the Sri Lankan authorities were arresting Tamils during this
period because of concerns that the LTTE would carry out suicide attacks.
[11]
It was, in my view, a reasonable, common-sense
inference on the part of the PRRA Officer that the fact that
Mr. Sandirasekaram was questioned and released during this period
indicates that the Sri Lankan authorities did not believe that he was involved
with the LTTE in planning such attacks.
[12]
The father’s affidavit also stated that the Sri
Lankan authorities came to his home looking for Mr. Sandirasekaram on
three occasions in early 2012, and that the father had told
Mr. Sandirasekaram about each visit. These visits pre-dated
Mr. Sandirasekaram’s refugee hearing, and the Officer was quite reasonably
troubled by the fact that Mr. Sandirasekaram had not mentioned any of them
at his hearing.
[13]
The father’s affidavit did contain new evidence
regarding three other occasions in December of 2012, and April and May of 2013
(after Mr. Sandirasekaram’s refugee hearing) when Sri Lankan authorities
allegedly came to the father’s home looking for Mr. Sandirasekaram in
order to question him regarding an LTTE plot involving Jaffna University
students. Mr. Sandirasekaram’s father says that he was beaten on two of
these occasions, and he provided a doctor’s letter attesting to the fact that
he had sought treatment for contusions and other injuries resulting from blunt
force trauma.
[14]
The PRRA officer considered the new evidence
provided by Mr. Sandirasekaram’s father regarding the events that
post-dated the Board’s decision. In concluding that the evidence was not
sufficient to establish a forward-looking risk for Mr. Sandirasekaram, the
Officer noted that the father’s evidence was “vague and
lacking in details”. Moreover, no evidence had been provided by
Mr. Sandirasekaram’s mother and sister, who were allegedly present during
the visits to the family home by the Sri Lankan authorities. The PRRA Officer
also noted that there was no indication in the doctor’s letter that the father
had explained how he had sustained his injuries or that they were consistent
with a beating. While the Officer accepted that Mr. Sandirasekaram’s
father had sustained injuries, the Officer found that the cause of the injuries
had not been satisfactorily established.
[15]
I agree with Mr. Sandirasekaram that it
would be not be reasonable for the PRRA Officer to fault
Mr. Sandirasekaram or his father for being unable to explain what was in
the mind of the Sri Lankan authorities, and why they only came looking for
Mr. Sandirasekaram some two years after he left Sri Lanka if they were
seriously concerned about his involvement with the LTTE.
[16]
However, when the Officer’s reasons are read as
a whole, it appears that the Officer was questioning whether
Mr. Sandirasekaram’s father had been given any explanation as to why the
authorities were suddenly interested in Mr. Sandirasekaram’s whereabouts
and his possible connection to the LTTE.
[17]
I further agree with the respondent that even if
this aspect of the Officer’s decision was unreasonable, it does not affect the
Officer’s overall assessment of the case, and does not provide a basis for this
Court’s intervention.
[18]
The Officer also noted the fact that there was
no suggestion that the Sri Lankan authorities had shown any interest in
Mr. Sandirasekaram in the 18 months between their last alleged visit in
2013 and the date of the PRRA decision. This reasonably led the Officer to
conclude that the Sri Lankan authorities were not currently interested in
Mr. Sandirasekaram.
[19]
Mr. Sandirasekaram further submits that the
PRRA officer erred by only considering the risk that he would face at the
airport in Colombo, and failing to consider the risk to which he would be
exposed elsewhere in Sri Lanka. This argument is not borne out by a review of
the Officer’s analysis. While considerable attention was paid by the Officer to
the treatment that Mr. Sandirasekaram might encounter at the Colombo airport,
the Officer also examined the risk faced by Mr. Sandirasekaram once he
left the airport: see, in particular, pages 25 and 26 of the Officer’s reasons.
[20]
It is, moreover, apparent that the Officer did
not just consider country condition information that pre-dated
Mr. Sandirasekaram’s refugee hearing, as Mr. Sandirasekaram contends.
The list of sources consulted at the end of the PRRA decision lists a number of
reports from 2013 and 2014, and specific reference is made to a 2014 United
Kingdom Home Office report in the body of the Officer’s analysis.
III.
Conclusion
[21]
It is the PRRA Officer’s responsibility to
evaluate the probative value of evidence provided in support of a PRRA
application. The officer did so here, and determined that little weight should
be ascribed to the affidavit of Mr. Sandirasekaram’s father. I have not
been persuaded that this determination was unreasonable. Consequently, the
application for judicial review is dismissed.
[22]
I agree with the parties that the case is
fact-specific, and does not raise a question for certification.
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