Docket: IMM-3528-15
Citation:
2016 FC 352
Toronto, Ontario, March 29, 2016
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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PAKEERNATHAN
THAMOTHARAMPILLAI
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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]
This is an application for judicial review a
negative decision of a Pre-Removal Risk Assessment (“PRRA”) conducted by a
senior immigration officer (“PRRA Officer”) pursuant to s 112 of the Immigration
and Refugee Protection Act, SC 2001 c 27 (“IRPA”).
Background
[2]
The Applicant is a citizen of Sri Lanka and has
a long immigration history. In 1991 he arrived in Canada, with his family, as
a permanent resident. In 1996 he was convicted of possession of a narcotic for
the purposes of trafficking and lost his permanent residence status. After
serving his sentence, he was found to be inadmissible for serious criminality. In
November 2003 his application for permanent residence on humanitarian and
compassionate (“H&C”) grounds was refused. On January 12, 2004 the
Applicant made his first PRRA application, which was refused, and on May 27,
2005 his application for judicial review was dismissed. He was deported in
2004.
[3]
The Applicant claims that upon arrival back in
Sri Lanka he was detained, threatened and accused of being a member of the
Liberation Tigers of Tamil Eelam (“LTTE”). Once released, he was frightened to
use his real identification due to the association of Northern Sri Lanka with
LTTE leaders. He procured false identification to return to his family’s home
in the north. Frightened of being discovered there, he returned to Colombo and,
when passing through a LTTE checkpoint, he was accused of being wanted by the
LTTE. The officers checked their list for his name but, because he was
travelling using a false identity, that name was not on the list.
[4]
Once in Colombo, he decided to leave Sri Lanka
again. In 2006 he claimed refugee protection in France and was deported back
to Sri Lanka. Shortly thereafter, the Applicant left Sri Lanka again and
entered Canada on a fraudulent passport on June 28, 2006. He was found to be
inadmissible to Canada because he was not in possession of a valid passport,
because of his past criminal conviction and because he had not received
authority to return following his previous deportation. And, because his claim
had been determined to be ineligible on grounds of serious criminality,
pursuant to s 101(1)(f) of the IRPA, he was not eligible to have a refugee
claim determined by the Refugee Protection Division (“RPD”) of the Immigration
and Refugee Board of Canada.
[5]
While in immigration detention for illegal
entry, the Applicant submitted a second PRRA application. The application was
allowed by a PRRA officer on March 15, 2007, but was denied upon Ministerial
review on July 14, 2010. The Federal Court allowed an application for leave
and judicial review of that decision and ordered that there be a
redetermination of the PRRA application. On August 6, 2012 the redetermination
of the Applicant’s second PRRA application also resulted in a negative decision
(“2012 PRRA”). The Applicant’s application for judicial review was denied on
August 21, 2013.
[6]
On March 26, 2014 the Applicant applied for a
third PRRA which again resulted in a negative decision. The present
application for judicial review arises on the basis of this negative decision.
Decision Under Review
[7]
The PRRA Officer reviewed the Applicant’s
immigration history and quoted extensively from his statutory declaration dated
March 26, 2014 including the Applicant’s claim that, even though the war in Sri
Lanka has ended, the situation there is worsening in many ways and that, if
returned, he would face discrimination and harassment due to his ethnicity and
would be targeted because he has family overseas.
[8]
The PRRA Officer noted that because the
Applicant was inadmissible for serious criminality pursuant to s 36 of the
IRPA, consideration of his request for protection was, pursuant to s 112(3)(b)
of the IRPA, restricted to the grounds set out in s 97 of the IRPA. The PRRA
Officer also quoted from Citizenship and Immigration Canada’s (“CIC”) Protected
Persons Manual which states that the new evidence rule contained in s 113(a) of
the IRPA does not apply to repeat PRRA applications. However, the doctrine of issue
estoppel could apply to limit a subsequent PRRA application if the same
question was decided in a prior PRRA. The Protected Persons Manual stated that
a subsequent PRRA could be limited to a re-examination of the evidence in light
of any changes that occurred since the previous PRRA decision. Applying this
guide, the PRRA Officer stated that because the Applicant’s claim was not heard
by the RPD, the new evidence rule was not applicable. He decided, therefore,
that he would “consider the evidence submitted with
respect to the administrative law principle of issue estoppel”.
[9]
The PRRA Officer stated that in addition to the
documentary evidence submitted by the Applicant, he had considered his own
country condition research, which was listed in the decision under sources
consulted, the previous PRRA ‘Notes to File’ dated August 3, 2012, which were
quoted in part and which outlined the Applicant’s submissions at that time, as
well as counsel’s submissions for the previous PRRA dated June 10, 2011. The
PRRA Officer determined that the Applicant was submitting essentially the same
risks as he had in his previous PRRA. The information provided in the
statutory declaration as well as the documentation submitted regarding his
stated risks upon return in 2004 had previously been presented and considered
in his prior request for protection and had been decided. The PRRA Officer
concluded that a re-examination of the Applicant’s evidence did not indicate
any changes had occurred and/or new risks that had developed since the initial
decision and, therefore, “the evidence does not meet
the requirements of the administrative law principle of issue estoppel”.
[10]
The PRRA Officer also noted Applicant’s
counsel’s letter, dated January 20, 2015, stating counsel’s intention to amend
the Applicant’s submissions to include recent developments in Sri Lanka
resulting from a snap election. However, that at the time of the PRRA
Officer’s decision, on April 15, 2015, updated submissions had not been
received. Regardless, the PRRA Officer had conducted his own country
conditions research reviewing the US Department of State Human Rights Practices
Report Sri Lanka 2013 (“US Report – Sri Lanka 2013”) and three internet news
articles (dated January and March 2015) on the newly elected president of Sri
Lanka.
[11]
The PRRA Officer concluded that the documentary
evidence he consulted established the existence of human rights violations,
corruption, crime and discrimination against minorities, including Tamils. However,
he found that country conditions in Sri Lanka are similar to the conditions
that existed prior to the determination of the Applicant’s 2012 PRRA. And,
although there had been recent changes, namely the newly formed government,
there was insufficient objective evidence to demonstrate that those changes
would, more likely than not, result in a s 97 risk to the Applicant should he
return to Sri Lanka. The PRRA Officer found that there had not been
significant changes since the first PRRA decision so as to constitute risk factors
that arose subsequent to the refusal of the last PRRA.
[12]
Although the PRRA Officer’s decision was
rendered on April 15, 2015, it was not communicated to the Applicant. On April
21, 2015 the Applicant’s counsel submitted three packages of documentary
evidence totalling 589 pages. On May 5, 2015 Applicant’s counsel wrote to
advise of a delay in a further submission and, on June 2, 2015, a further
package of documentary evidence comprising 444 pages was submitted. The Applicant’s
counsel also indicated that still further submissions would be made by the end
of that week.
[13]
On June 29, 2015 the PRRA Officer provided his
April 15, 2015 decision together with an addendum dated June 29, 2015. In the
addendum he stated that he had reviewed and assessed the documents included in
the above submissions with a view to determining whether they provided evidence
of risk. However, he concluded that the documentary evidence consisted of information
speaking to general country conditions in Sri Lanka. Further, he found that
the majority of the documents pre-dated the 2012 PRRA and that the Applicant
had not provided an explanation for why they could not have been presented
during the previous PRRA.
[14]
The PRRA Officer also found that the most recent
of the documents provided indicated that Sri Lanka has seen some recent
political changes, including an election, and that there is continued debate over
investigations into the allegations of human rights violations during the 30 year
conflict. He identified four articles that spoke to these issues from
Applicant’s counsel’s June 2, 2015 submissions. The PRRA Officer accepted,
based on the documentary evidence, that several outstanding issues continue to
afflict Sri Lanka. Ultimately, however, the PRRA Officer concluded that the evidence
demonstrated that the country conditions in Sri Lanka are similar to those that
existed prior to his April 15, 2015 decision and that he had not been provided
with sufficient objective evidence to establish that recent changes, particularly
the January 2015 election, would more likely than not result in a risk to the
Applicant should he return to Sri Lanka. Further, that there had not been
significant changes to constitute risk factors arising subsequent to his
initial PRRA decision.
Issues
[15]
The Applicant submits that three issues arise:
1) Did the PRRA Officer err in law with respect to issue estoppel?
2) Was the decision of the PRRA Officer reasonable in light of the
evidence?
3) Did the Officer fail to observe principles of fundamental justice and
procedural fairness?
[16]
However, in my view, the sole issue is whether
the PRRA Officer’s decision was reasonable.
Standard of Review
[17]
The Applicant submits that he has raised errors
of law, fact and mixed errors of law and fact. The standard of review in immigration
cases is reasonableness on questions of fact or mixed fact and law, but
correctness on questions of law. The Respondent submits that the standard of
review of a PRRA decision, when considered in its entirety, is reasonableness
and that a high degree of deference is owed to the findings of fact and
assessment of the evidence by the officer.
[18]
In my view, the standard of review applicable to
the PRRA Officer’s decision is that of reasonableness (Belaroui v Canada
(Citizenship and Immigration), 2015 FC 863 at paras 9-10; Kandel v
Canada (Citizenship and Immigration), 2014 FC 659 at para 17; Wang v
Canada (Citizenship and Immigration), 2010 FC 799 at para 11).
Was the decision reasonable?
[19]
The Applicant submits that issue estoppel
does not apply but, even if it does, the PRRA Officer erred in applying it to
the facts in the present case.
[20]
The Applicant submits the following reasons for this
conclusion: the evidence in the present PRRA differs from that submitted in the
previous PRRA and demonstrates that conditions in Sri Lanka for Tamils have
significantly worsened; the PRRA Officer erred by requiring the Applicant to
present new risks, rather than simply new evidence (Elezi v Canada
(Citizenship and Immigration), 2007 FC 240 at paras 38-39; Christopher v
Canada (Citizenship and Immigration), 2008 FC 964; Djordevic v Canada
(Citizenship and Immigration), 2014 FC 13 at paras 17-21); there is no bar
on filing multiple PRRA applications and the PRRA Officer is an administrative
officer whose decision is not final; and, the Applicant did not submit his
current PRRA in an attempt to review the previous PRRA as the PRRA Officer
implies, while he relied on previous evidence and submissions, he also
presented new and more current evidence.
[21]
The Applicant provides no authority for his view
that issue estoppel has no application to a repeat PRRA. However, the
Applicant does refer to the Supreme Court of Canada decision in Toronto
(City) v CUPE, Local 79, 2003 SCC 63 (at para 23), which describes issue
estoppel as a branch of res judicata, precluding the re-litigation
of issues previously decided in court in another proceeding. There the Supreme
Court also stated that for issue estoppel to be successfully invoked,
three preconditions must be met: the issue must be the same as the one decided
in the prior decision; the prior decision must have been final; and, the
parties must be the same (also see Casseus v Canada (Minister of Citizenship
and Immigration), 2003 FCT 472 at para 22).
[22]
The Respondent made no submissions concerning
the PRRA Officer’s application of the principle of issue estoppel but
submits that the PRRA Officer considered all of the evidence and that the
decision was reasonable.
[23]
In this case the PRRA Officer relied on and
quoted from the CIC Protected Persons Manual, which states that s 113(a) of the
IRPA does not apply to repeat PRRA applications, but that the principle of issue
estoppel may be applied, specifically:
Although the A113(a) new evidence rule does
not apply to repeat PRRA applications, the administrative law principle of
issue estoppel applies to subsequent PRRA applications as a matter of binding
Federal Court and Supreme Court of Canada jurisprudence. Issue estoppel is a
form of res judicata—a rule by which a final judgement by a court is conclusive
upon the parties in any subsequent litigation involving the same cause of
action. If the same question has been decided in a previous PRRA decision that
is final, the officer may limit the subsequent PRRA to a re-examination of the
evidence in light of any changes that have occurred since the initial decision.
However, the officer has discretion to decline to apply estoppel in
appropriate, though limited, circumstances if it would be in the interests of
justice to do so. For example, the officer may consider reasons why, with
reasonable diligence, evidence that was available when the previous PRRA
application was made could not have been presented at that time. The officer
must state whether or not issue estoppel is being applied to the subsequent PRRA
(or what issues are subject to the principle) and provide reasons.
[24]
However, recent decisions of this Court have
held that s 113(a) is applicable to evidence submitted in repeat PRRAs. In Aboud
v Canada (Citizenship and Immigration), 2014 FC 1019 [Aboud], not
cited by the parties, the applicant’s refugee claim had been rejected by the
RPD, his first PRRA was also rejected as was a redetermination of a second
PRRA. The PRRA officer assessing the second PRRA had rejected most of the
submitted evidence as inadmissible on the basis that it had not been put
forward by the applicant either at the RPD hearing or prior to the first PRRA,
as was required by s 113(a) of the IRPA and the doctrine of issue estoppel.
[25]
Justice Roy noted that it is well established
that a PRRA is not an opportunity for an applicant to appeal or seek
reconsideration of an RPD decision that rejected his or her claim for refugee
protection (Raza v Canada (Citizenship and Immigration), 2007 FCA
385 at para 12 [Raza]; Singh v Canada (Citizenship and Immigration),
2013 FC 201 at para 15; Escalona Perez v Canada (Minister of Citizenship and
Immigration), 2006 FC 1379 at para 5) and that the Federal Court of Appeal
in Raza at para 13, stated that the outcome of a negative refugee
determination “must be respected by the PRRA officer”
in the absence of new admissible evidence that might have affected that
outcome. Justice Roy also noted that s 113(a) of the IRPA prescribes the
evidence which an applicant can submit, essentially limiting the applicant to
new evidence that was not available or was not reasonably available to him or
her at the time the claim to refugee protection was rejected, or to evidence
that the applicant could not reasonably have been expected to present at that
hearing.
[26]
Having determined that the PRRA officer had not
erred in rejecting evidence arising prior to the RPD decision under s 113(a) of
the IRPA, Justice Roy then addressed the issue of the admissibility of evidence
on a second or subsequent PRRA:
31 The question remains as to whether
evidence submitted by the applicant is admissible where that evidence was not
available or reasonably available at the time of the RPD hearing but was
available or reasonably available at the time of the applicant's first PRRA
application. I find that the decision to reject this evidence was reasonable.
In Li v. Canada (Minister of Citizenship & Immigration), 2010 FCA
75, [2010] 3 F.C.R. 347 (F.C.A.) at paragraph 41, the Federal Court of Appeal
was clear that "an application for protection under section 112 is an
application for refugee protection." As such, a prior PRRA meets the
statutory language of subsection 113(a); it is a "claim to refugee
protection [that] has been rejected." Indeed, this Court has applied
subsection 113(a) to limit the admissibility of evidence submitted in
subsequent PRRA applications: Narany v. Canada (Minister of Citizenship
& Immigration), 2008 FC 155 (F.C.) at paragraph 7; Moumaev v. Canada
(Solicitor General), 2007 FC 720 (F.C.) at paragraph 27.
[27]
I see no reason why this reasoning would not
also apply in this circumstance where there was no determination by the RPD but
where the decision under review is the third PRRA. Further, although the PRRA
Officer relied on CIC’s Protected Persons Manual, this Court has consistently
held that policies, operational manuals and guidelines may offer guidance to
the decision-maker, but should not be treated as a binding precedent or
checklist; the decision-maker must first have regard to all of the facts and
circumstances before them (Smith v Canada (Citizenship and Immigration), 2014
FC 929 at paras 42-46; Lemus v Canada (Citizenship and Immigration), 2014
FCA 114 at para 12).
[28]
Regardless of whether or not issue estoppel
is applicable, in my view the PRRA Officer conflated the concept of issue
estoppel with the admissibility of the evidence.
[29]
In the April 15, 2015 decision the only
documentary evidence submitted to the PRRA Officer was the March 26, 2014 statutory
declaration of the Applicant, and various other documents, but no country
condition information. The covering facsimile transmission sheet from his
counsel states that the Applicant relies on all previous evidence and submissions
in both his H&C applications and the new PRRA application and that updated information
would follow. Thus, the PRRA Officer compared the content of the statutory
declaration to the previous PRRA notes to file and to counsel’s submissions and
concluded that the same risks were being advanced as had been decided by the
prior PRRA. The PRRA Officer states that “re-examination”
of the Applicant’s evidence did not indicate that any changes had occurred or
new risks had developed since the initial decision and “as
a result, the evidence does not meet the requirements of the principle of issue
estoppel”. I would note, however, that the principle of issue
estoppel applies to the question of whether the same risks were previously
considered and decided, not to the admissibility of the new evidence.
[30]
The CIC Protected Persons Manual appears to
require a re-examination of the evidence in light of any changes that occurred
since the initial decision. In this situation, however, the Applicant had not submitted
new country conditions evidence prior to the decision being written. As a
result, the PRRA Officer could only compare the risk the Applicant claimed in
the context of the prior country conditions as described in the 2012 PRRA and
his own independent research, being US Report – Sri Lanka 2013. Therefore,
while he may have misstated how the evidence before him was to be assessed, the
manner in which he applied issue estoppel in the April 15, 2015 decision,
if applicable, was not improper and, in any event, his conclusion was
reasonable.
[31]
The PRRA Officer also considered his own country
condition research concerning the impact of the recent election in Sri Lanka.
As described above, based on that review, he concluded that the evidence did
not demonstrate that the Applicant would be at risk, pursuant to s 97, if
returned to Sri Lanka. Again, I can find no error in that conclusion.
[32]
However, subsequent to the April 15, 2015
decision being prepared but before it was communicated, the Applicant submitted
a great volume of country condition documentary evidence.
[33]
These submissions were acknowledged by the PRRA
Officer in the addendum in which he stated that he had reviewed and assessed
the documents to determine if they provided evidence of risk. He found that
the majority of the documents spoke to the general country conditions and pre-dated
the 2012 PRRA and that no explanation was provided as to why this had not been
submitted previously. It is possible that by this comment the PRRA Officer was
considering whether to exercise his discretion not to apply issue estoppel. As
an example of when this could be done, the CIC Protected Persons Manual noted
circumstances when the Applicant explained why, with reasonable diligence,
evidence that was available could not have been presented at a prior time. However,
it is unclear exactly what the PRRA Officer was considering. It is also
possible that the PRRA Officer was considering the admissibility of those new
documents the same basis of availability, as would be the case in the context
of an analysis under s 113(a) of the IRPA.
[34]
On this point it is significant that the
certified tribunal record (“CTR”) does not contain the country condition
document submissions. This may have been by oversight or it may mean that the
PRRA Officer considered the documents not to be admissible. It was not
explained. The Applicant’s Record contains lists of the updated country
conditions that were, presumably, submitted. All of the 26 documents listed in
package 13 of 15 submitted on April 21, 2015 are dated 2014, thus, they in fact
all post-date the 2012 PRRA. Similarly, all of the 51 documents listed in
package 14 of 15 are 2014 documents. And, package 15 of 15, lists 64 documents,
all dated 2014 or 2015. The June 2, 2015 submission lists 52 documents and,
while many of those are quite dated, eight of them are dated 2014 or 2015.
Four of these eight documents from the June 2, 2015 submissions are referenced
by the PRRA Officer in the addendum. The PRRA Officer described these four
documents as “the most recent of the documents
provided”, states that they indicated that Sri Lanka had seen some recent
political change, and quoted from one of them.
[35]
The problem is that, while the PRRA Officer
states that the majority of the submissions pre-date the 2012 PRRA, as seen
from the above, this would not appear to be accurate. This is supported by the
fact that, in addition to the lists of documents, portions of the 1000 pages of
submissions are also contained in the Applicant’s Record and these do post-date
the 2012 PRRA.
[36]
There is no reference to or analysis of any of the
many documents that post-date the 2012 PRRA in the PRRA Officer’s decision to
explain why they do not establish new or heightened risk or why the PRRA
Officer afforded them no weight. Nor does the PRRA Officer compare the content
of any of those documents to those submitted in support of the 2012 PRRA to
determine whether the risks described in the new evidence were sufficiently dealt
with in 2012. Put otherwise, even if he were attempting to limit the PRRA
based on issue estoppel, he did not re-examine the prior evidence in
comparison to the Applicant’s further submissions to determine if any new or
changes to risk had occurred since the determination in the 2012 PRRA. The
only aspect of risk which was considered was the impact of the 2015 election.
Indeed, based on his reasons, it is possible that the PRRA Officer only
assessed risk from his April 15, 2015 decision to the June 29, 2015 addendum.
[37]
For these reasons, the PRRA Officer’s conclusion
that there had been no change in country conditions since 2012 is not reasonable.
This Court is unable to determine whether the PRRA Officer was alive to the
content of the other documents in assessing the Applicant’s risk, and without a
complete CTR, it cannot assess the reasonableness of the conclusion. Put
otherwise, the PRRA Officer’s decision is not justifiable, transparent and intelligible
and is not defensible in respect of the facts and the law (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47).
[38]
For these reasons, the application is granted.
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