Date: 20160711
Docket: IMM-2784-15
Citation: 2016 FC 761
St. John’s, Newfoundland and Labrador, July 11, 2016
PRESENT: The
Honourable Madam Justice Heneghan
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BETWEEN:
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THEEPAN
KATHIRKAMANATHAN
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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
[1]
These Reasons are issued pursuant to the
Judgment issued on June 10, 2016.
[2]
Mr. Theepan Kathirkamanathan (the “Applicant”)
seeks judicial review of the decision of a Pre-Removal Risk Assessment Officer
(the “Officer”) dismissing his Pre-Removal Risk Assessment (the “PRRA”). The
Officer determined that the Applicant was not a Convention Refugee or person in
need of protection as defined in section 96 or subsection 97(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, as amended (the “Act”).
[3]
The Applicant is a citizen of Sri Lanka, of
Tamil ethnicity. He arrived in Canada on April 14, 2010 and sought refugee
protection on May 10, 2010 on all five of the Convention grounds.
[4]
His claim for recognition as a Convention
refugee was refused by the Immigration and Refugee Board, Refugee Protection
Division (the “RPD”) on March 17, 2011, on the grounds that he
was not credible and did not fit the profile of a person attracting the
interest of the authorities.
[5]
The Applicant submitted his PRRA application in November
11, 2011 alleging a fear of persecution from the Sri Lankan army as a “young
Tamil male” who would be perceived as a member of the Liberation Tigers of
Tamil Eelam (the “LTTE”). He also claimed to be at risk because he was a failed
refugee claimant. Finally, he alleged a risk of detention and extortion from
the authorities at the Colombo airport.
[6]
The Applicant’s PRRA application has been
refused twice. He succeeded upon judicial review of those decisions in cause numbers
IMM-2304-12 and IMM-2443-13.
[7]
In support of his PRRA application, the
Applicant filed new evidence, including a copy of a Detention Attestation dated
May 26, 2009 issued by the International Committee of the Red Cross; a letter
dated November 28, 2012 from the Applicant’s father; 162 news articles; and an
affidavit from the Applicant sworn on December 12, 2012.
[8]
In her decision denying his PRRA application, the
Officer checked the box indicating that the Applicant had not submitted new
evidence.
[9]
The Officer said that the Detention Attestation
was not accepted as new evidence since the document could have been provided to
the RPD and the Applicant had not explained why he did not do so.
[10]
The Officer found that, while the Applicant’s
parents may have been visited by army intelligence in 2012, there was no
indication that any state authorities were still interested in the Applicant. She
found that the Applicant does not face a risk under sections 96 or 97 of the
Act.
[11]
The Officer reviewed the current country documentation
and noted that Sri Lanka experiences a number of human rights issues including
extortion, disappearances and killings. She acknowledged that the documentary
evidence shows the Sri Lankan authorities continue to search for suspected
member of the LTTE. However, the Officer found that extortion is not a risk
that falls under section 96 or section 97 of the Act.
[12]
The Officer found that there was no evidence to
indicate that the Applicant is known to the authorities or that he is suspected
of being a LTTE member.
[13]
Finally, the Officer concluded that she was not
persuaded that the Applicant would face more than a mere possibility of persecution
because of his ethnicity, or that he would face a risk to his life or a risk of
cruel and usual treatment or punishment if returned to Sri Lanka.
[14]
The first issue to be addressed is the standard
of review. Since a PRRA application involves questions of mixed fact and law
and the weighing of evidence, the applicable standard of review is
reasonableness; see the decision in Raza v. Canada (Minister of Citizenship
& Immigration) (2006), 58 Admin. L.R. (4th) 283 (F.C.) at para. 12,
aff'd (2007), 370 N.R. 344 (F.C.A.) at para. 3.
[15]
The reasonableness standard requires that the
decision be justifiable, transparent, intelligible and fall within a range of
possible, acceptable outcomes; see the decision in Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 190 at para. 47.
[16]
The Applicant advanced several arguments in this
application. However, in my opinion, it is not necessary for me to address all
the arguments since I am satisfied that the Officer made a reviewable error.
The dispositive issue in this application is the burden of proof applied by the
Officer in assessing the risk alleged by the Applicant.
[17]
Under section 96 of the Act, the claimant must
establish a reasonable chance of persecution, which is less than the balance of
probabilities; see the decision in Adjei v. Canada (Minister of Employment
and Immigration), [1989] 2 F.C. 680. This burden has been described as more
than a mere possibility of persecution; see the decision in Alam v. Canada
(Minister of Citizenship and Immigration) (2005), 41 Imm. L.R. (3d) 263.
[18]
In my opinion, the Officer’s decision does not
meet the standard of reasonableness referred to above. It is unclear whether
the Officer applied the correct burden of proof to assess the Applicant’s risk pursuant
to section 96 of the Act. Any doubt in that regard will be resolved in favour
of the Applicant.
[19]
In the result, this application for judicial
review is allowed and the matter is remitted to a different Officer for
re-determination. There is no question for certification arising.
“E. Heneghan”
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