Docket: IMM-7538-14
Citation:
2015 FC 913
Ottawa, Ontario, July 24, 2015
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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MATHIRAJ
THIRUCHELVAM
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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]
The Mr. Thiruchelvam [the Applicant], a
citizen of Sri Lanka, seeks judicial review pursuant to section 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA or the Act] of a decision
by an immigration officer [the Officer] denying his Pre-Removal Risk Assessment
[PRRA].
[2]
The central issue of concern is whether the
Officer made a determinative adverse credibility finding against the Applicant
without convoking a hearing as required pursuant to subsection 113(b) of the
IRPA.
[3]
While there has been some debate in the court
with respect to the standard of review regarding the decision of a PRRA officer
to conduct an oral hearing, I find that the recent jurisprudence has held that
the deferential standard of reasonableness applies (Kulanayagam v Canada
(Citizenship and Immigration), 2015 FC 101 at para 20, Ibrahim v Canada
(Citizenship and Immigration), 2014 FC 837 at para 6; Bicuku v Canada
(Citizenship and Immigration), 2014 FC 339 at paras 16-20; Ponniah v
Canada (Citizenship and Immigration), 2013 FC 386 at para 24; Mosavat v
Canada (Citizenship and Immigration), 2011 FC 647 at para 9).
[4]
For the reasons that follow, the application is
dismissed. I find that a hearing would have served no purpose based on the
Officer’s line of reasoning for rejecting the Applicant’s evidence that he was
arrested, detained and tortured three times between November 2012 and March
2013 prior to fleeing on March 19, 2013 after experiencing problems with
reporting to the authorities.
[5]
The Applicant offered direct personal evidence
claiming that he had been arrested and tortured by state authorities on three
occasions. This evidence was corroborated by letters from a Sri Lankan doctor and
from a Canadian doctor that the scarring apparent on the Applicant’s body was
consistent with his evidence of being tortured.
[6]
In addition, the Applicant offered evidence
primarily from his father or gathered from others by his father intended to
corroborate the Applicant’s arrest and the case against him being maintained by
state authorities. This evidence was rejected as having little probative value.
Its rejection is the second basis of the Applicant’s application. However, I am
satisfied with the Officer’s analysis in this regard and only the need for a
hearing raises a serious issue of concern for the Court.
[7]
The Officer states that, based on all of the
evidence presented, the Applicant did not discharge his burden of proving that
he was reasonably likely to have been scarred by torturers against his will in
Sri Lanka, or that he was a person of interest to the authourities.
[8]
I find that the determinative issue in this case
is whether a hearing would have changed the result. This is a highly contextual
decision, which in the present matter is assisted by the exhaustive and
detailed reasons that accompany the decision. I conclude that the Officer’s
reasoning was that a hearing would serve no purpose given the probative evidence
of inconsistencies from the Applicant, his profile and his treatment by state
authorities which led the Officer to conclude that he was not a person of
interest.
[9]
Based on the objective country condition
evidence, the Officer found that the scarring is not, in and of itself,
considered a risk unless a person is likely to be detained and stripped during
interrogation for other reasons. The Officer concluded that the evidence
presented by the Applicant does not support a finding that he will be detained
and stripped during interrogation for other reasons upon his return to Sri
Lanka, which would lead to his scars being revealed.
[10]
The Officer also found that the Applicant’s evidence
does not support a conclusion that the Sri Lankan authorities suspected or
accused the Applicant of being a failed suicide bomber or a fighter for the
LTTE. The Officer found that those suspected of LTTE links are at a particular
risk, that they are held for long terms and those who are released undergo
rehabilitation. In that respect, the Applicant was not held for a long period
of time nor did he undergo rehabilitation, which supports the conclusion that
he would not be viewed by the authorities as a supporter or member of the LTTE.
[11]
He was also released with minimal reporting
conditions and after a short period of time, he was no longer required to report
to the army camps. His national identity card was returned to him following his
detentions. He was allowed to leave Sri Lanka with his own passport without
problems from the authorities. He was not interrogated, detained or stripped by
the authorities prior to his departure.
[12]
The Officer found that the Applicant was cleared
of any suspicion of being a LTTE member or supporter and therefore, he was not
a wanted person or on the government’s security alert list. As a result, the
Officer concluded that the Applicant was not of interest to the authorities as
a result of any real or perceived LTTE affiliation and therefore, he was not at
risk upon his return to Sri Lanka.
[13]
The Officer’s final conclusion is that the Applicant
does not have the profile of someone who will be seen as a threat or of adverse
interest upon his return and that he does not have a personalized risk of
persecution or harm in Sri Lanka based on his ethnicity.
[14]
It is the accumulation of this evidence which led
the Officer to conclude that the Applicant did not discharge his burden of proof
that he was tortured. The Officer found it to be inconsistent with the more
probative evidence of his actual treatment by the authorities and his profile
as someone of no interest to the authorities.
[15]
Ultimately, the decision whether to require a
hearing is one to be made by the Officer and this decision is entitled to
deference from the Court. I conclude that the Officer’s decision not to hold a
hearing is reasonable, as it would serve no purpose given the contradictory
objective evidence that the Officer found to be of more probative value than
the Applicant’s personal narrative.
[16]
The Officer’s decision therefore falls within
the range of reasonably acceptable outcomes based on the facts and the law and
is justified by intelligible and transparent reasons.
[17]
In the circumstances, the application is dismissed.
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