Docket: IMM-7170-13
Citation:
2015 FC 1025
Ottawa, Ontario, August 28, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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ARAVINTHAN
SUNTHARALINGAM
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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]
The applicant’s pre-removal risk assessment
(PPRA) was denied by a senior immigration officer at Citizenship and
Immigration Canada [the officer]. The applicant now applies for judicial review
of that decision pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act].
[2]
The applicant seeks an order setting aside the
negative decision and returning the matter to a different officer for
redetermination.
I.
Background
[3]
The applicant is a citizen of Sri Lanka. He was
born in Jaffna on April 29, 1986.
[4]
The applicant claimed to have been detained and
then released several times between 2001 and 2006 by Sri Lankan authorities.
The most recent incident was in 2006 when he was questioned following a
bombing. He was told to report again in three days. Instead, believing this to
be dangerous, he travelled to Colombo where he obtained a passport and a visa
for India. The applicant travelled to India in 2006 and remained there for approximately
three years.
[5]
In 2009, the applicant travelled from India to
Thailand on a false Indian passport. In May 2010, he boarded the MV Sun Sea
as a passenger.
[6]
On August 13, 2010, the applicant arrived in
Canada. He made a refugee claim. He was initially detained and then released on
conditions in March 2011.
[7]
The applicant’s Refugee Protection Division
[Board] hearing took place on June 6, 2012. In a negative decision dated August
10, 2012, the Board rejected the applicant’s claim on the basis of credibility
and changed country conditions. It found an internal flight alternative and a
generalized rather than personalized risk. It also rejected the claim that the
applicant was a refugee sur place and would be at risk based on his
temporary stay and refugee claim in Canada. Further, it found that the
applicant would not be perceived to have ties to the Liberation Tigers of Tamil
Eelam (LTTE) and would therefore not be at risk on return to Sri Lanka.
[8]
In November 2012, the applicant enrolled in the
Assisted Voluntary Return and Reintegration (AVRR) program, but later withdrew
from it in January 2013. He requested a deferral of his removal. He alleged
that the army had visited his parents’ home three times in 2012 to look for
him.
[9]
On April 4, 2013, the Canada Border Services
Agency [CBSA] denied his request to defer removal.
[10]
On April 5, 2013, the applicant brought a motion
to stay his removal on the ground that the waiting period under paragraph
112(2)(b.1) of the Act is unconstitutional. This Court granted his motion and
no reasons were given.
[11]
In September 2013, the applicant applied for a
PRRA. The application was rejected. The applicant was scheduled to be removed
on December 23, 2013.
[12]
On November 7, 2013, the applicant filed for
judicial review of the negative PRRA decision.
[13]
On, December 9, 2013, the applicant brought a
motion for an order staying the execution of the removal order.
[14]
On December 20, 2013, Mr. Justice Richard Mosley
granted the applicant’s stay motion.
The PRRA officer’s analysis is thorough. For
the purposes of this motion, I am satisfied that no serious issue arises on the
substantive merits of the decision. References, however, to a “dubious letter
from his father” and to the implausibility of the applicant’s claim that the
Sri Lanka authorities would become interested in the applicant immediately
prior to his removal from Canada could be construed as a veiled credibility
finding requiring an interview under the regulations. Considering the low
threshold that applies, I accept therefore that the applicant has met the first
conjunctive requirement of the Toth test.
II.
Decision Under Review
[15]
In a decision dated October 22, 2013, the
officer made a negative PRRA decision, finding that the applicant would face
less than a mere possibility of persecution should he be returned to Sri Lanka.
[16]
The officer summarized the applicant’s history
and the findings from the Board. The Board rejected the applicant’s claim on
the basis of credibility and changed country conditions. The Board found an
internal flight alternative and a generalized rather than personalized risk.
The Board also rejected the claim that the applicant is a refugee sur place
and would be at risk based on his temporary stay and refugee claim in Canada.
Further, the Board found the applicant would not be perceived to have ties to
the LTTE and would therefore not be at risk on return to Sri Lanka.
[17]
The officer first noted that the applicant’s
submissions are confusing. The officer summarized the applicant’s submissions
as the following: the applicant is at risk because of deterioration in country
conditions since the Board decision and the applicant is at risk because
persons similarly situated to him are at risk.
[18]
Subsection 113(a) of the Act provides that the
PRRA officer may only assess new evidence, which is evidence that dates after
the Board decision or evidence that the applicant could not have reasonably
presented at the refugee hearing. The officer’s function is to determine if new
evidence supplied by an applicant demonstrates either that the applicant is at
risk or that there has been a significant enough change to the conditions in
the home country such that the analysis conducted by the Immigration and
Refugee Board is no longer valid.
[19]
Regarding country conditions, the officer found that
the Board’s findings stand. He determined that the new evidence shows that trends
identified by the Board have continued, but not significantly deteriorated. The
officer noted that, although the applicant asserted deteriorating conditions,
there is no supporting evidence that conditions had changed since the Board decision.
The officer acknowledged the serious human rights problems in Sri Lanka, but
disagreed with the applicant that he now fits a different profile such as that
of a human rights worker, LTTE supporter, journalist, or anti-government
protestor.
[20]
With respect to the risk that the applicant may
be perceived to be linked to the LTTE, the officer found on a balance of
probabilities, the Sri Lankan government is not interested in the applicant.
The officer acknowledged the positive and negative aspects of the government’s
treatment of Tamils. For example, on one hand, the government is starting to
hire Tamils for the police force and there has been a decrease in police
checkpoints; on the other hand, some Tamils who are forcibly returned to Sri
Lanka are arrested and the use of torture continues. Further, the officer
stated that the alleged visits by the Sri Lankan army to the applicant’s
parents’ home in 2012 were likely fabricated to delay the applicant’s return.
[21]
With respect to the risk of having travelled on
the Sun Sea, the officer found that it is merely speculative on a
balance of probabilities. The officer determined that travelling on the Sun Sea
did not create a new source of risk that was not assessed by the Board. The
officer observed that in applications from other Sun Sea and Ocean
Lady passengers, some had links such that Sri Lanka might perceive them as
having LTTE membership or sympathies. However, the mere fact that the applicant
travelled on the Sun Sea did not, in itself, put him at risk. The
officer also noted that the applicant failed to establish how Sri Lanka might
learn of his date or manner of arrival.
[22]
In conclusion, the officer reiterated that “[r]isk by definition is forward-looking to the possibility
of loss, peril or injury.” The officer found that the applicant had not
demonstrated that “such changes have been wrought in
Sri Lanka, or in his personal situation that he would now face a risk of
persecution, a risk to life, a risk of torture, or of cruel and unusual
treatment or punishment.”
III.
Issues
[23]
The applicant raises one broad issue for my
review:
The PPRA Officer conducted a curt and
highly-selective analysis of the applicant’s personalized risk in Sri Lanka;
the Officer failed to support all critical findings with a clear evidentiary
basis, misapplied the principal of “generalized risk” and perversely
disregarded remaining credible, recent, objective evidence supportive of the
risk to the applicant as a refugee sur place by virtue of his arrival to
Canada aboard the M.V. Sun Sea, a ship labeled as owned and operated by the
former Liberation Tigers of Tamil Eelam (LTTE). The Officer also focused on,
and raised the issue of the applicant’s “credibility”, yet failed to convoke an
interview or hearing so as to afford him an opportunity to address those
concerns.
[24]
The respondent raises two issues:
1.
Was the finding that the applicant was not at
risk reasonable?
2.
Should the officer have convened an interview to
address issues regarding the applicant’s credibility?
[25]
I would rephrase the issues as follows:
A.
What is the standard of review?
B.
Was the officer’s assessment of the new evidence
reasonable?
C.
Should the officer have convened an interview to
address issues regarding the applicant’s credibility?
IV.
Applicant’s Written Submissions
[26]
The applicant submits that the applicable
standard of review in the present case is that of reasonableness.
[27]
The applicant concedes that he had credibility
issues and lied to boost his refugee claim. Then he submits that if the officer
found his counsel’s submissions confusing, he should have taken steps to
clarify them. The officer had all the information in front of him and did not
have to guess or assume, as he suggests in his reasons. The applicant
reiterates his submission that his membership in the particular social group, Sun
Sea migrants or refugees, was based upon his ethnicity and perceived
political opinion as an individual who will be suspected of possible links to
the former LTTE.
[28]
Subsection 113(b) of the Act gives discretion to
PRRA officers to convoke an in-person interview in cases where issues of credibility
may arise in considering new evidence. Here, the officer did not convoke an
interview, despite raising the issue of the applicant’s credibility. In
particular, the officer emphasized the various lies that the applicant had told
upon his arrival to Canada and to the Board. The officer failed to convoke an
interview and hence breached the Immigration and Refugee Protection
Regulations, SOR/2002-227 [the Regulations], (Ferguson v Canada
(Minister of Citizenship and Immigration), 2008 FC 1067, [2008] FCJ No
1308; Selliah v Canada (Minister of Citizenship and Immigration), 2004
FC 872, [2004] FCJ No 1134; and Cosgun v Canada (Minister of Citizenship and
Immigration), 2010 FC 400, [2010] FCJ No 458).
[29]
In addition, the officer’s statement that the
applicant’s arguments are confusing, raises the issue of the applicant’s credibility
and whether the officer understood his arguments. The applicant cites Mr. Justice
Sean Harrington’s comment in Canada (Minister of Citizenship and
Immigration) v A011, 2013 FC 580 at paragraph 10, [2013] FCJ No 685, that
it is a great injustice that passengers on the Sun Sea and Ocean Lady
are treated so differently in their refugee claim, depending on the member of the
Board who decides the case.
[30]
The applicant submits that in order to determine
whether a person is a member of a particular social group, the officer has to
consider the general underlying themes of the defence of human rights and
anti-discrimination that form the basis for the international refugee
protection initiative (Canada (Attorney General) v Ward, [1993] 2 SCR
689 at page 739). Here, the officer was unreasonable to find that the applicant
had failed to establish that the Sri Lankan authorities would learn of his
arrival to Canada on the Sun Sea. Since the officer acknowledged that
persons fitting the applicant’s profile will be “screened” at the country’s
international airport upon arrival, the applicant will surely be asked about
his past whereabouts, mode of travel and activities in Canada. Therefore, the
Sri Lankan authorities will learn of his connection to the Sun Sea.
[31]
The applicant submits that he is
similarly-situated to the applicant in Canada (Minister of Citizenship and
Immigration) v B272, 2013 FC 870, [2013] FCJ No 957. In that case, the Board
held that the applicant would be perceived as a suspected LTTE member or an
associate of the LTTE by virtue of being onboard the MV Sun Sea and his
involvement with the LTTE.
[32]
The applicant submits that because the officer
wrote the question, “[s]o how would he come to the
attention of Sri Lanka?” at page 10 of the decision, the officer fettered
discretion by relying on the reasons of the CBSA when considering the applicant’s
deferral request. He argues that the jurisdiction and discretion of the officer
relate to inclusion and protection. The reasoning of CBSA in refusing the
deferral request ought not to play any role within the PRRA.
[33]
Also, the applicant submits the officer was
unreasonable to find that, because the applicant enrolled in the AVRR program
on November 27, 2012, it can be inferred that he felt “safe” to return to Sri
Lanka at that time. The applicant submits that this is sheer speculation and that
the issue was dealt with during the April 2013 stay motion.
[34]
Further, the applicant submits that the officer’s
assessment that things have improved in Sri Lanka was based on a
highly-selective analysis of the objective evidence and ignored more recent
available credible evidence which supported the personalized risk to the
applicant. He references Sebastiampillai v Canada (Minister of Citizenship
and Immigration), 2009 FC 394 at paragraph 49, [2009] FCJ No 493, one of my
earlier decisions, which held that the officer’s decision was unreasonable because
it did not refer to and deal with evidence that went to the issue raised by the
applicant. In the present case, the applicant submits that country conditions
have deteriorated and the human rights situation has worsened for persons fitting
his profile.
[35]
The applicant submits, therefore, that the
officer’s decision was unreasonable.
V.
Respondent’s Written Submissions and Further
Memorandum
[36]
The respondent submits that the question of
whether or not the officer should have convened an interview is a question of
procedural fairness. It is reviewable on a standard of correctness. As for the
remainder of the applicant’s arguments addressing the officer’s assessment of
the facts, the respondent agrees with the applicant that the applicable
standard of review is reasonableness (Dunsmuir v New Brunswick, 2008 SCC
9, [2008] 1 S.C.R. 190 [Dunsmuir]).
[37]
First, the respondent submits that the officer
was reasonable to find that the applicant is not at risk. It submits that the
officer assessed the submitted evidence and made a reasonable finding that the
evidence did not point to a conclusion different from that of the Board.
[38]
In making this determination, the officer did
not ignore or selectively review the evidence. While the applicant made that
assertion, he failed to show what evidence was allegedly ignored. In addition,
the officer did not make a finding that things have improved in Sri Lanka. Rather,
the officer found that the new evidence adduced by the applicant did not show
that the situation had deteriorated since the Board rendered its decision.
[39]
The officer also did not make findings of
generalized risk. Any reference to generalized risk in the officer’s reasons
was in his summary of the reasons of the Board.
[40]
Further, the officer did not disregard evidence
of a sur place claim. Here, this claim was already assessed by the Board.
The officer did not find that travel on the Sun Sea per se was a risk
factor for other applicants; rather, he found that, in other cases where Sun
Sea passengers were found to be at risk, there were other factors that
would lead authorities to conclude that those applicants had LTTE ties or
sympathies. In addition, the officer was reasonable to conclude that the
applicant’s manner of travel would not come to the attention of the Sri Lankan
authorities because neither the section 44 report nor the detention release
order identifies the date or manner of his arrival in Canada. The applicant’s
assertion that he would reveal his manner of travel to the Sri Lankan
authorities was not made in his submissions to the PRRA officer.
[41]
The claim that the officer failed to consider
the applicant’s risk as a Tamil returnee is without merit. The Board had already
rejected this allegation. The officer found that the new evidence adduced by
the applicant does not show that he would be at risk.
[42]
The respondent submits, therefore, that the
officer’s determination was thorough and reasonable.
[43]
Second, the respondent submits that the officer
was not required to convene an interview. It argues that the officer only made
reference to the credibility findings of the Board and the CBSA officer, but
did not make an independent assessment of the credibility of the evidence. It
was not incumbent on the officer to convoke an interview to address those
credibility findings if the new evidence did not overcome those credibility
findings. The respondent submits that the officer is entitled to find that the
evidence is insufficient without making a credibility finding (Selduz v
Canada (Minister of Citizenship and Immigration), 2010 FC 583 at paragraph
31, [2010] FCJ No 689; and Sayed v Canada (Minister of Citizenship and
Immigration), 2010 FC 796 at paragraphs 35 to 37, [2010] FCJ No 978).
[44]
Here, the tribunal record shows that the
applicant did not allege during his PRRA that Sri Lankan authorities had been
looking for him in 2012. There was also no evidence filed to show that Sri
Lankan authorities visited the applicant’s family in 2012. Since there was no
evidence filed, section 167 of the Regulations was not triggered and no hearing
was required.
[45]
The respondent further submits that even if this
Court finds that the officer made a veiled credibility finding, that finding
was not determinative of the decision. What was determinative was the officer’s
finding that the applicant had not established a change in his personal
situation or the general country conditions such that he would now be at risk.
This, despite any statements regarding the applicant’s credibility, was
determinative of the applicant’s PRRA.
[46]
Therefore, the respondent submits that the
officer’s decision was reasonable.
VI.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[47]
The officer’s assessment of new evidence is a
question of mixed fact and law, which is reviewable on a standard of
reasonableness (Dunsmuir at paragraphs 47 and 51). This means that I
should not intervene if the decision is transparent, justifiable, intelligible
and within the range of acceptable outcomes (Dunsmuir at paragraph 47; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59, [2009]
1 SCR 339 [Khosa]). As the Supreme Court held in Khosa at
paragraphs 59 and 61, a court reviewing for reasonableness cannot substitute
its own view of a preferable outcome, nor can it reweigh the evidence.
[48]
The jurisprudence on the standard of review for
a decision granting an oral hearing pursuant to section 167 of the Regulations
and section 113 of the Act is mixed (Bicuku v Canada (Minister of
Citizenship and Immigration), 2014 FC 339 at paragraph 16, [2014] FCJ No
346). Here, I agree with the respondent’s submission that the standard of
correctness should be applied. I have mentioned in prior decisions that in my
view, the issue of whether to grant an oral hearing is a question of procedural
fairness (Prieto v Canada (Minister of Citizenship and Immigration),
2010 FC 253 at paragraph 24, [2010] FCJ No 307; and Ullah v Canada (Minister
of Citizenship and Immigration), 2011 FC 221 at paragraphs 20 and 21,
[2011] FCJ No 275). A review of procedural fairness typically triggers the
standard of correctness (Mission Institution v Khela, 2014 SCC 24 at
paragraph 79, [2014] 1 S.C.R. 502; and Khosa at paragraph 43). The Court
must determine whether the process followed by the decision-maker achieved the
level of fairness required in all of the circumstances (Khosa at
paragraph 43).
[49]
I wish to first deal with Issue 3.
B.
Issue 3 - Should the officer have convened an
interview to address issues regarding the applicant’s credibility?
[50]
The officer’s decision states:
The alleged change in this situation is that
the army or CID visited his family home in 2012 looking for him or his
whereabouts.
Given Mr. Suntharalingam’s
-
Numerous misrepresentations,
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His father’s statements that no one had looked
for Mr. Suntharalingam as of 2011,
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His own statements (January 18, 2011) that no
one had asked about him,
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Lack of links or perceived links to the LTTE
(according to the RPD),
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Voluntary enrollment in AVRR – after the alleged
visits,
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Dubious letter from his father (as assessed by
CBSA), and
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His extremely implausible idea that the army or
CID would suddenly become interested in him immediately prior to his removal
from Canada, when they were not interested in the six years beforehand,
I find, on a balance of probabilities, the
army, CID or other agencies of the Sri Lankan government are not in fact
interested in him. I find the alleged visits were fabricated by unknown persons
(perhaps his father) to prevent or delay Mr. Suntharalingam’s return to Sri
Lanka rather than to describe a significant s. 96 or 97 risk to him.
(applicant’s record, page 25)
[51]
These statements of the officer concern me. It
appears that the officer did not believe that there were visits by the army or
CID in 2012, looking for the applicant. Even if the officer raised this concern
on his own, this, in my view, is a credibility finding which may have
contributed to his denial of the applicant’s claim.
[52]
As such, it is my view that the officer should
have convoked an oral hearing concerning this matter.
[53]
The officer did not and, as a result, his decision
is unreasonable and must be set aside and referred to a different officer for
redetermination.
[54]
Because of my finding, I need not deal with the
other issue.
[55]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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