Docket: IMM-8491-14
Citation: 2015 FC 1067
Ottawa, Ontario, September 16, 2015
PRESENT: The Honourable Mr. Justice
Fothergill
BETWEEN:
B489
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I.
Introduction
[1]
The Applicant is a Tamil male from Sri Lanka who arrived in Canada in 2010 aboard the ship MV Sun Sea. The MV Sun Sea,
which carried approximately 494 Sri Lankan ethnic Tamils, was widely reported
to be owned and operated by the Liberation Tigers of Tamil Eelam [the LTTE]. The
governments of Sri Lanka and Canada both consider the LTTE to be a terrorist
organization. The arrival of the ship in Canada received significant domestic
and international media attention.
[2]
The Applicant seeks judicial review of a decision
of a visa officer [the Officer] to refuse his application for permanent
residence on humanitarian and compassionate [H&C] grounds. For the reasons
that follow, I have concluded that the Officer reasonably found that the
Applicant would not face unusual and undeserved or disproportionate hardship if
he were to return to Sri Lanka. The application for judicial review is
therefore dismissed.
II.
Background
[3]
The Applicant argued before the Refugee
Protection Division of the Immigration and Refugee Board [the RPD], and also in
support of his request for a Pre-Removal Risk Assessment [PRRA], that he is at risk
in Sri Lanka because the authorities will suspect him of having links to the LTTE
solely because he travelled to Canada aboard the MV Sun Sea. He was unsuccessful
in both forums and his application for leave and for judicial review of the
RPD’s decision was refused by this Court (B489 v Canada (Minister of
Citizenship and Immigration), IMM-2686-13, June 26, 2013 per Justice
Russell).
[4]
The Applicant then submitted an H&C application
based on his degree of establishment in Canada, the best interests of children
with whom he has formed an attachment in Canada, and the risk that he allegedly
faces in Sri Lanka.
III.
The Officer’s Decision
[5]
The Officer acknowledged several positive factors
regarding the Applicant’s degree of establishment in Canada: (i) he is employed
full-time at Color Steels in Thornhill, Ontario; (ii) he is self-supporting;
(iii) he is learning English; (iv) he volunteers at the Canadian Traditional
Karate Association as a martial arts instructor and at the Vethantha Gnana
Shiva Temple of Scarborough, Ontario; and (v) he is active in his community.
However, the Officer was not persuaded that the Applicant’s degree of
establishment in Canada would cause him unusual and undeserved or
disproportionate hardship if he were to return to Sri Lanka. The Officer noted
that the Applicant’s wife and children reside in Sri Lanka, and that the
Applicant has acquired skills and training in Canada which could assist him in
finding work in Sri Lanka.
[6]
The Officer also acknowledged that the Applicant
has established a bond with the children of the couple with whom he resides in Canada. However, the Officer found that the Applicant had not demonstrated any interdependency
between himself and the children. The Officer concluded that the best interests
of these children would not be significantly affected, given that their parents
and extended family live in Canada. Furthermore, the Officer determined that it
was clearly in the best interests of the Applicant’s children in Sri Lanka to be reunited with their father, and gave greater weight to the best interests
of the Applicant’s own children.
[7]
Finally, the Officer considered documentary
evidence of country conditions in Sri Lanka. The Officer accepted that former
passengers on the MV Sun Sea who are known or perceived to be affiliated
with the LTTE may be at risk of arbitrary detention and police abuse. However,
the Officer concluded that the Applicant’s travel to Canada aboard the MV
Sun Sea did not in itself put him at risk, given that he has no apparent
connection to the LTTE. Furthermore, the Officer concluded that the Applicant
had not demonstrated that the Sri Lankan authorities were aware that he had
travelled aboard the MV Sun Sea.
[8]
The Officer noted that recent country condition reports
indicate that there is no systematic monitoring of Sri Lankans who are forcibly
returned, and that the majority of those who are found to be actual LTTE members
are released from detention. In support of his conclusions the Officer cited an
IRB research document titled LKA104245 dated February, 2013; a UK Home Office
Operational Guidance Note on Sri Lanka, and a recent report from Freedom House.
[9]
The Officer also considered the Minister’s Disclosure
regarding two previous passengers on the MV Sun Sea who were
subsequently deported to Sri Lanka. However, the Officer concluded that the
Applicant’s situation was distinguishable because the two individuals in question
were already known to the Sri Lankan authorities: one had previous ties to the
LTTE and the other had been convicted of weapons smuggling in Thailand and had been involved in organizing the voyage of the MV Sun Sea.
Furthermore, the Officer noted that one of the individuals featured in the Minister’s
Disclosure had reported to a Canada Border Services Agency officer that he was
safe in Sri Lanka and that he had not experienced any problems.
IV.
Issues
[10]
This application for judicial review raises the
following issues:
A.
Was the Officer’s assessment of country
conditions in Sri Lanka reasonable?
B.
Was the Officer’s assessment of the Applicant’s
degree of establishment in Canada reasonable?
V.
Analysis
[11]
The Officer’s conclusions regarding country
conditions in Sri Lanka and the Applicant’s degree of establishment in Canada involve questions of fact and questions of mixed fact and law. They are therefore
subject to review by this Court against the standard of reasonableness (Kisana
v Canada (Minister of Citizenship and Immigration), 2009 FCA 189, [2010] 1
FCR 360 (CA) at paras 18 and 20; Figueroa v Canada (Minister of Citizenship
and Immigration), 2014 FC 673 at para 24; Husain v Canada (Minister of
Citizenship and Immigration), 2011 FC 451 at paras 11-13).
A.
Was the Officer’s assessment of country conditions
in Sri Lanka reasonable?
[12]
The Applicant says that the Officer’s decision
was unreasonable because he did not refer to or explain his refusal to accept
evidence that contradicted his conclusions – specifically, a report titled “Amnesty International Concerns with respect to forced
returns to Sri Lanka for passengers of the MV Ocean Lady and MV Sun Sea”
dated June 12, 2012 [the AI Report]. The AI Report suggested that passengers aboard
the MV Ocean Lady and MV Sun Sea are presumed by the Sri Lankan
government to be affiliated with the LTTE and “would be
exposed to a serious risk of detention, torture and mistreatment on return
should the Sri Lankan authorities in turn suspect they had been on board those vessels.”
[13]
The Minister points out that the AI Report was
published before the RPD’s decision to reject the Applicant’s claim. He argues
that it was reasonable for the Officer to rely on more recent evidence which
indicates that former passengers on the MV Sun Sea who are forcibly
returned to Sri Lanka are not at risk, and that the Officer was not obliged to
revisit the RPD’s findings of fact based on a document that preceded its
decision.
[14]
It is an error for a visa officer to engage in a
selective analysis of the evidence and to ignore contradictory evidence without
providing a reasonable explanation (Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration) (1998), 157 FTR 35, [1998] FCJ No 1425 at para
17). This Court has on a number of occasions found that a failure to consider
or provide reasons for rejecting the AI Report constitutes a reviewable error: S.Y.
v Canada (Minister of Citizenship and Immigration), 2014 FC 324; B381 v
Canada (Minister of Citizenship and Immigration), 2014 FC 608 [B381]
at para 41; Thanabalasingam v Canada (Minister of Citizenship and
Immigration), 2015 FC 397 [Thanabalasingam] at para 17; Pathmanathan
v Canada (Minister of Citizenship and Immigration), 2015 FC 640 at para 10;
Sittambalam v Canada (Minister of Citizenship and Immigration), 2015 FC
813 at para 8.
[15]
However, in this case the previous jurisprudence
of the Court regarding the AI Report may be distinguished. Here, the
Applicant’s application for leave and for judicial review of the RPD’s decision
that he would not be at risk in Sri Lanka solely because he travelled aboard
the MV Sun Sea was rejected by this Court, and accordingly the RPD’s
decision is final. Also, the officer who conducted the PRRA found that the Applicant
was not at risk.
[16]
The AI Report did not feature prominently in the
Applicant’s submissions to the Officer. The Officer understandably focused on
the Minister’s Disclosure, given that this was the only evidence regarding
country conditions in Sri Lanka that the RPD did not consider. The Officer’s
conclusions were supported by the evidence, and fell within the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law” (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47). They were therefore reasonable.
B.
Was the Officer’s assessment of the Applicant’s
degree of establishment in Canada reasonable?
[17]
The Applicant does not contest the Officer’s
conclusions regarding the best interests of the children affected by his
decision to refuse the Applicant’s application for a permanent resident visa.
However, the Applicant says that the Officer was wrong to refuse the
application merely because the Applicant’s degree of establishment was no
greater than what one would expect in the circumstances (Raudales v. Canada (Minister of Citizenship and Immigration), 2003 FCT 385). I disagree. The
Officer specifically considered whether the Applicant’s return to Sri Lanka would result in unusual and undeserved or disproportionate hardship. The
Officer’s conclusion that there was nothing unusual about the Applicant’s
degree of establishment in Canada was consistent with his conclusion that the
Applicant’s return to Sri Lanka would not cause him hardship of this severity.
[18]
The Applicant also argues that the Officer was wrong
to find that the skills he acquired in Canada would assist with his re-integration
in Sri Lanka, relying on Justice Campbell’s decision in Sosi v Canada
(Minister of Citizenship and Immigration), 2008 FC 1300 at paras 9 and 18. In
addition, the Applicant says that the Officer should not have assumed that he
would have the support of his wife and children in Sri Lanka, given that there
was no evidence before the Officer regarding the nature of their relationship.
The Applicant relies on Justice Russell’s decision in Prashad v Canada (Minister of Citizenship and Immigration), 2011 FC 1286 [Prashad] at para
68.
[19]
In Gomez Jaramillo v Canada (Minister
of Citizenship and Immigration), 2014 FC 744 at paras 55 and 68, Justice
Brown held that an applicant’s ability to re-establish himself in his country
of origin is relevant to the question of whether he will face unusual and
undeserved or disproportionate hardship if he is required to apply for
permanent residence from abroad in the usual manner. For the reasons
articulated by Justice Brown, I am satisfied that it was appropriate for the Officer
to consider the skills that the Applicant had acquired in Canada and whether they might be transferrable to Sri Lanka.
[20]
Furthermore, Prashad is distinguishable.
In that case, the visa officer concluded without any evidentiary foundation
that the applicants had “a network of relatives and
friends”. In this case, there is no dispute that the Applicant’s wife
and children reside in Sri Lanka and the Applicant did not adduce any evidence
to suggest that he is estranged from them. On the contrary, he included his
wife and children in his application for a permanent resident visa and they
currently reside with the Applicant’s parents in Sri Lanka. It was therefore
reasonable for the Officer to infer that the Applicant’s wife and children
could assist him in re-integrating himself in Sri Lanka.
VI.
Conclusion
[21]
For the foregoing reasons, the application for
judicial review is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review is dismissed. No question is certified for
appeal.
"Simon Fothergill"
FEDERAL
COURT
SOLICITORS
OF RECORD
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