Docket: IMM-1360-16
Citation:
2016 FC 1273
Ottawa, Ontario, November 15, 2016
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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PATHMANATHAN
PATHMARAJ
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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 a judicial review, pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [the Act], of a February 17, 2016 decision by an Immigration Officer [the
Officer] rejecting the Applicant’s Pre-Removal Risk Assessment [PRRA]
application.
[2]
The Applicant argues that the Officer erred in
his assessment of the evidence by failing to consider new, more timely,
evidence of risk and by not assessing his claim on a cumulative basis.
[3]
A review of the Officer’s decision reveals no reviewable
error and, as such, the application is dismissed.
I.
Background
[4]
The Applicant is a citizen of Sri Lanka. In 1997,
the Applicant and his family fled to India. They returned to Sri Lanka in 2010.
The Applicant fled to Canada in 2013 and claimed refugee status which was
rejected by the Refugee Protection Division [RPD] on December 17 2013.
[5]
The RPD found that the Applicant’s testimony was
neither credible nor trustworthy. It rejected a number of his claims, including
his allegations of being detained, arrested and tortured upon return to Sri
Lanka, as not being credible. The Applicant acknowledged that neither he nor
anyone in his family ever had trouble with the Sri Lankan Army prior to leaving.
[6]
The Applicant alleged being at risk in Sri Lanka
“on the cumulative effect of his being a male Tamil
from northern Sri Lanka, who has spent significant time in Canada, and would be
returning to Sri Lanka as a failed asylum seeker.” This profile, it is
alleged, will result in him being viewed as a sympathizer/supporter of the
Liberation Tamil Tigers of Eelam [LTTE].
II.
The Impugned Decision
[7]
The Applicant’s PRRA application relied on the
same allegations rejected as being not credible and untrustworthy before the
RPD. Two additional pieces of evidence were submitted: a letter from a Member
of Parliament in Sri Lanka and a letter from the Applicant’s uncle, both noting
that the Sri Lankan Army intelligence sought the Applicant’s whereabouts on two
occasions in 2014. The Officer noted that the new evidence fell “under more of a self-serving nature”.
[8]
The Officer assigned a significant probative
value to the RPD’s findings relating to the Applicant’s credibility as there
were unbiased. It was found, based on the totality of the evidence, that these
findings outweighed the new evidence that the authorities would be interested
in the Applicant. Accordingly, the Officer rejected the Applicant’s PRRA
application on February 17, 2016.
III.
Issues
[9]
This application raises the following issues:
1. Did the Officer err in his assessment of the evidence that was
before him?
2. Did the Officer err by ignoring relevant evidence directly
contradicting the conclusion reached?
3. Did the Officer err by failing to consider the claim of the
Applicant on a cumulative basis?
IV.
Standard of Review
[10]
The parties agree that the standard of
reasonableness applies to the Officer’s analysis. The weighing of evidence is a
factual inquiry attracting a high degree of deference (Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12 at para 45, 59). The Court will not
intervene unless the Officer’s conclusions fall outside 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).
V.
Analysis
[11]
The Applicant submits that the Officer erred in
giving minimal probative value to the new evidence submitted by the Applicant
as it emanated from the Applicant’s uncle and was thus found to be “self-serving”. As I have explained in Fadiga v Canada
(Minister of Citizenship and Immigration), 2016 FC 1157 at paras 14-28, the
Officer’s statement that affidavits from relatives are of a self-serving nature
and of diminished or little weight is not indicative of a reviewable error.
While such statements may be necessary to support the Applicant’s claim, they
nevertheless lack reliability because they are made out of court and emanate
from biased witnesses that are not subject to testing, which is the hallmark of
exceptions to hearsay evidence. Unless corroborated their weight is
significantly reduced: Ferguson v Canada (Minister of Citizenship and Immigration),
2008 FC 1067 at para 27.
[12]
In any event, the Officer concluded that the new
evidence did not outweigh “the value I have placed on
the RPD’s credibility findings”. The RPD’s adverse credibility findings were
extensively described and demonstrated that the Applicant was not credible, nor
his explanations trustworthy. Having concluded that there was no basis to
accept the Applicant’s narrative based on his own testimony, which was tested,
common sense suggests that new evidence that cannot be tested, repeats the same
allegations as the Applicant, and comes from a relative who is partial to the
Applicant’s well-being due to their family relationship, would not outweigh the
detailed credibility findings of the RPD.
[13]
The evidence of the Member of Parliament was
also rejected on the valid ground that the information would have been hearsay
based on information obtained from the uncle. I find no reviewable error in the
Officer’s treatment of the new affidavit evidence.
[14]
The Applicant further submits that the Officer
ignored extensive evidence of more recent evidence than that relied upon by the
Officer demonstrating the risks to persons with the Applicant’s profile in Sri
Lanka as a returning refugee claimant and directly contradicting the
conclusions reached by the Officer. In particular, the Court was directed to
one paragraph in a report by Human Rights Watch submitted to the PRRA officer
(at page 77 of the Applicant’s Record) indicating that people suspected of links
to the LTTE, including those returned as failed asylum seekers were regularly
subjected to torture.
[15]
The Officer stated that he had read and
considered all the evidence submitted. The Officer relied upon the evidence
demonstrating that the Applicant had none of the attributes that would fit the
profile of someone of interest to Sri Lankan authorities, other than being a young
Tamil from the North. He left the country when 14 years old and only returned
10 years later. He had stated in his oral testimony that neither he nor anyone
in his family ever had trouble with the Sri Lanka Army prior to leaving.
[16]
The Officer cited the recent 2014 UK Home Office
Country Information and Guidance on Tamil Separatism in support of its
conclusion that the Applicant would not be perceived as a LTTE supporter or
sympathizer such that he would be at risk upon return to Sri Lanka. I would not
consider this evidence outdated, such that a report from the Human Rights Watch
in 2015 should be considered new evidence, particularly as it was a single unsupported
statement.
[17]
These cases rely upon profiles of persons at
risk returning to Sri Lanka, many of which have been developed by different
organizations. In addition, the Officer may choose to rely upon country reports
as providing more objective conclusions from assembled information, rather than
a single uncorroborated statement in a report of an organization with a mandate
to report and promote human rights in societies. Given the deference owed to
the Officer in respect of the weight attributed to evidence, the Court finds no
reviewable error in the Officer’s conclusion.
[18]
During the hearing, the Applicant made
additional submissions with respect to the general conditions of Tamil citizens
in northern Sri Lanka based on documentation from the US Department of State,
the UK Foreign and Commonwealth Office and Human Rights Watch. The Court notes
that the submissions in the memorandum in respect of the Officer’s decision was
with regards to the profile of the Applicant being a young Tamil male from the
North and a failed asylum seeker returning to Sri Lanka, which was the same
risk alleged before the RPD. It was not unreasonable that the Officer did not
address this more general argument in its reasons, as it too would not meet the
profile of persons being at risk relied upon by the Officer.
[19]
The Court also finds no basis to support the
Applicant’s claim that the Officer did not conduct a prospective analysis, or
that the cumulative effect of the evidence was not considered.
VI.
Conclusion
[20]
The Application is dismissed. No question is
certified for appeal.
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