Docket: IMM-6410-14
Citation:
2015 FC 409
Ottawa, Ontario, March 31, 2015
PRESENT: The Honourable Mr. Justice Harrington
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BETWEEN:
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PUVANESAN
THURAIRAJA
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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]
Mr. Thurairaja was a Tamil Tiger (of the Liberation
Tigers of Tamil Eelam [LTTE]). This Sri Lankan separatist group has been
branded as terrorist by the Canadian government. Thus, Mr. Thurairaja’s claim
for refugee status was rejected under article 1F of the 1951 Convention
Relating to the Status of Refugees. He was one of the persecutors, not one
of the persecuted.
[2]
Nevertheless, he is still entitled to Canada’s protection if return to Sri Lanka would expose him to danger. He could become a protected
person under s 112 of the Immigration and Refugee Protection Act,
pursuant to s 113(d) thereof.
[3]
With that in mind, he filed a pre-removal risk
assessment [PRRA] application in November 2011. His application was dismissed
in July 2014. This is the judicial review of that decision.
[4]
He was well aware that the LTTE committed crimes
against humanity. The organization had a limited brutal purpose. At his refugee
hearing, he stated that he had worked with the Records Office and the Finance
Department and that, as such, to use the words of the Refugee Protection
Division, “he and other civilians had been responsible
for collecting taxes owing the Tigers, which went particularly to pay for the
fighters. He also indicated in his testimony that he was well aware that the
persons being solicited for these taxes had no choice but to pay them and that
they risked harsh reprisals if they refused to pay them to the Tigers.”
As the claimant stated himself during his testimony, “the
taxes collected financed the Tigers’ activities” (Tribunal Record, p 217).
[5]
The civil war ended in 2009. Since then, more
and more Sri Lankans of Tamil ethnicity have been returned to their country.
There is great concern as to how they are treated. Mr. Thurairaja fears he will
be accused of being a former LTTE member (which he was) and will be detained and
mistreated by the army.
[6]
The officer concluded that he would not be at
serious risk. His reasoning is clearly set out in the following extracts from
his notes to file:
Moreover, objective documentation indicates
that there are some profiles of people with previous, real or perceived, links
to the LTTE, that go beyond prior residency within an area that was controlled
by the LTTE, who could need refugee protection. These profiles are:
1) Persons who held senior positions
with considerable authority in the LTTE civilian administration, when the LTTE
was in control of large parts of what are now the northern and eastern
provinces of Sri Lanka.
2) Former LTTE combatants or cadres.
3) Former LTTE combatants or cadres
who, due to injury or other reason, were employed by the LTTE in functions
within the administration, intelligence, computer branch or media (newspaper
and radio).
4) Former LTTE supporters who may
never have undergone military training, but were involved in sheltering or
transporting LTTE personnel, or the supply and transport of goods for the LTTE.
5) LTTE fundraisers and propaganda
activists and those with, or perceived as having had, links to the Sri Lankan
Diaspora that provided funding and other support to the LTTE.
6) Persons with family links or who
are dependent on or otherwise closely related to persons with the above
profiles.
Thus, the Sri Lankans [sic] authorities
target LTTE supporters with specific profiles. As noted previously, the
applicant first worked for the LTTE in the Records Office at their camp in
Tinnervelly, and then he worked in the Finance Department at their camp in
Chankanai. The applicant did not demonstrate that he has the profile of one of
the categories of individuals mentioned above who could be targeted by the
authorities. I am not satisfied that the applicant is personally at risk in Sri
Lanka because he worked for the LTTE.
[7]
The quoted specific profiles come from a UNHCR
Report of December 2012, which was in turn referred to in a United Kingdom Home
Office report of July 2013.
[8]
During argument on this judicial review, the
Minister submitted that Mr. Thurairaja did not specifically raise the specter
of persecution in Sri Lanka on the grounds that he was a tax collector and, in
any event, the profile covered fundraisers, not tax collectors. According to
the Minister, the officer had no duty to consider a possibility which had not
been raised by the applicant himself.
[9]
There are three reasons why this judicial review
should be granted.
[10]
The first reason is that the officer was
required to consider any ground of persecution i.e. political opinion that
was apparent on the face of the record, even if not specifically identified by
the applicant. As Justice Rennie, as he then was, wrote at paragraph 5 of Varga
v Canada (Citizenship and Immigration), 2013 FC 494, [2013] FCJ No 531
(QL), “Refugee claims involve fundamental human rights.
Accordingly, it is critical that the Board consider any ground raised by the
evidence even if not specifically identified by the claimant”.
[11]
The second reason is that, with respect to
country condition documents which became available after the PRRA was filed,
fairness required disclosure by the officer if the documents were novel or
contained significant information indicating a change in the general country
conditions which could have affected the disposition of the case (Mancia v
Canada (Minister of Citizenship and Immigration), [1998] 3 FC 461, [1998]
FCJ No 565 (CA) (QL)). Profiles of Tamils being returned to Sri Lanka have been changing in recent years. The UNHCR Report current at the time the application
was filed listed six profiles of persons potentially at risk, one of which was
persons suspected of having links with the LTTE. There was no elaboration of
profiles of individuals within that category. Following the 2012 UNHCR Report,
however, which was released after the applicant’s application was filed, there
was an illustrative list of profiles of persons with more elaborate links to the
LTTE, such as “fundraisers”. As this was novel and significant information
indicating a change in the country conditions which could have an effect on Mr.
Thurairaja’s case, the officer had a duty to disclose this report to the
applicant.
[12]
The third reason judicial review should be
granted is that the decision was, in any event, unreasonable. Given the reasons
the aplicant was excluded in the first place, it was unreasonable to
distinguish tax collectors from fundraisers in the context of his PRRA. It may
well be that Mr. Thurairaja would not be at risk simply because he worked for
the LTTE, but given that the taxes he collected financed its activities he may
well be at risk if returned.
[13]
Counsel agreed at the hearing that there is no serious
question of general importance to certify. I agree.
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