Docket: IMM-581-16
Citation:
2017 FC 11
Ottawa, Ontario, January 4, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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KUMAR
VARATHARASA
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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
I.
Overview
[1]
Mr. Varatharasa is a Tamil citizen of Sri Lanka
who entered Canada in 2009 and claimed refugee protection. The Refugee
Protection Division [RPD] of the Immigration and Refugee Board of Canada
refused the claim in October 2012. Leave for judicial review of that decision
was denied by this Court. Mr. Varatharasa failed to attend a bond reporting in
August 2013, a warrant was issued for his arrest. He was arrested in September
2015.
[2]
He subsequently requested a Pre-Removal Risk
Assessment [PRRA] which was refused in December 2015. Mr. Varatharasa now seeks
judicial review of that decision alleging that the PRRA Officer [Officer]: (1)
misunderstood his or her role as it related to the RPD decision by making
veiled credibility findings and relying on the RPD’s factual determinations
without assessing more recent documentary evidence; (2) mischaracterized,
mistreated and selectively relied on the evidence and, as a result, reached
unreasonable findings on several matters; (3) erred in determining that discrimination
did not rise to the level of persecution; and (4) failed to consider cumulatively
the distinct risks alleged on return. He asks that this Court set aside the
decision and return the matter for reconsideration by a different Officer.
[3]
I have framed the issues that arise in this
application as follows:
A.
Did the Officer commit a reviewable error by relying
on the RPD’s findings of fact?;
B.
Were the Officer’s findings in regard to
corroborating documentary evidence unreasonable?;
C.
Did the Officer unreasonably conclude that the
evidence of discrimination did not rise to the level of persecution?; and
D.
Did the Officer unreasonably fail to consider
the elements of Mr. Varatharasa’s profile cumulatively?
[4]
For the reasons that follow, I am of the opinion
that the Officer reasonably considered the RPD decision and the corroborative
new evidence, including the new country condition evidence. The Officer
reasonably addressed the issue of discrimination versus persecution and assessed
Mr. Varatharasa’s profile. The application is dismissed.
II.
Standard of Review
[5]
The decision of a PRRA officer is to be reviewed
on a standard of reasonableness. A decision will be reasonable where it: (1)
demonstrates justification, transparency and intelligibility in the decision-making
process; and (2) the decision falls within the range of possible, acceptable
outcomes which are defensible in respect of the facts and the law (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]). A
correctness standard of review may apply where fairness or specific questions
of law are engaged. However, none of those issues arise here (Dunsmuir at
paras 50, 51, 55 and 58).
[6]
Factual findings of a PRRA Officer are to be given
significant deference by a reviewing Court (Cupid v Canada (Minister of
Citizenship and Immigration), 2007 FC 176 at para 15); however “… deference is not a blank cheque. There must be reasoned
reasons leading to a justifiable finding.” (Njeri v Canada (Minister
of Citizenship and Immigration) 2009 FC 291 at para 12 cited in Pavlov v
Canada (Minister of Citizenship and Immigration), 2016 FC 282 at para 14).
III.
Analysis
A.
Did the Officer commit a reviewable error by
relying on the RPD’s findings of fact?
[7]
In rendering a negative PRRA decision,
the Officer addressed Mr. Varatharasa’s new evidence, the information on file
and the objective documentation on the country conditions. In doing so, the
Officer concluded that the risk alleged for the purpose of the PRRA application
was not significantly different from that which was presented before the RPD and
that Mr. Varatharasa had failed to prove that he was at risk with new and
significant or significantly different information. The Officer emphasized that
a “… PRRA application is not an appeal of a negative
refugee claim decision” and found
that the new evidence “… does not demonstrate
that the Sri Lankan authorities have any interests in the applicant and his
family or that the Sri Lankan authorities believe the applicant to have ties to
the LTTE.”
[8]
Mr. Varatharasa argues that in reaching this conclusion,
the Officer erred in relying on dated factual determinations of the RPD,
findings that were in some areas clearly incorrect. The RPD had determined that
he was not suspected of links to the Liberation Tigers of Tamil Eelam [LTTE]. Mr.
Varatharasa submits however, that more recent evidence demonstrated that
suspected links to the LTTE was not the only factor leading to risk. Rather,
the new evidence demonstrated that those who had fled Sri Lanka as asylum
seekers and Tamils who had left the country legally would be at risk on return
on the basis of those factors alone. I disagree.
[9]
It was reasonable for the Officer to rely on the
RPD’s prior findings. Mr. Varatharasa’s counsel advanced the position in oral
argument that the RPD decision, as it related to the finding that he had no
suspected links to the LTTE, was inconsistent and perhaps even incoherent in
light of the evidence of him having been detained in 1998.
[10]
The RPD decision is not the subject of review in
this application, nor was it the Officer’s role to review the RPD decision.
However, it is evident that the RPD considered a wide range of factors in
reaching its conclusion that there was no suspected LTTE link in Sri Lanka
including the fact that Mr. Varatharasa was: (1) not sent to government camps
after the defeat of the LTTE; (2) allowed to continue to go about his business
subject to brief questioning when encountering government authorities; (3) issued
a genuine Sri Lanka passport in 2004 and 2006; (4) able to depart and return to
Sri Lanka in 2007 and again soon after the LTTE defeat in 2009 “… without any interference whatsoever from any arm of the
Sri Lanka government”.
[11]
The RPD decision does not disclose findings that
are inconsistent or incoherent. In reaching its finding of no suspected LTTE
link, the RPD assessed all of the evidence, including the 1998 detention by the
Sri Lanka Army. This finding was neither clearly wrong nor inconsistent with the
evidence. It is also not inconsistent with the new evidence advanced in support
of the PRRA application. The Officer assessed the 1998 detention evidence in
light of all of the circumstances and did not err in relying on the RPD
findings.
[12]
With respect to the argument that the new
documentary evidence discloses that returning Tamils are at risk solely on the
basis of having fled Sri Lanka as asylum seekers absent any suspected LTTE link,
the Officer specifically noted this alleged risk. The Officer undertook a detailed
assessment of the current country condition evidence: (1) quoting extensively
from the 2014 US Department of State Report on Human Rights Practices in Sri
Lanka which noted the persistent reports of close ties between the Eelam’s
People’s Democratic Party [EPDP] and government security forces; (2) noting the
minimal progress made by the Government of Sri Lanka in addressing wartime
abuses and its failure to comply with the March 2013 United Nations Human
Rights Council resolution which led to the adoption of a new resolution in 2014
(3) noting the Human Rights Watch reports of failed Tamil asylum seekers being
subject to torture on return; (5) quoting the UNHCR’s Eligibility Guidelines
for Assessing the International Protection Needs of Asylum-Seekers from Sri
Lanka specifying that “there is no systematic
monitoring after arrival in Sri Lanka of the treatment of Sri Lankans who were
forcibly returned”; but also (6) noting the United Kingdom [UK] Operational
Guidance on Sri Lanka to the effect that this risk arises in the context of
Tamil activists in the Diaspora working to destabilize Sri Lanka.
[13]
The Officer acknowledged and addressed the
evidence of human rights groups to the effect that there is a risk of harm to
asylum seekers on return, but preferred the UK evidence to the effect that
targeting does not occur based solely on ethnicity but rather due to personal
political profiles. The Officer noted that Mr. Varatharasa did not allege any
involvement in activities aimed at destabilizing the government of Sri Lanka or
provide evidence to demonstrate that the government would have reasons to
believe that he was involved in any such activities.
[14]
The Officer did not act unreasonably in relying
on the RPD’s factual findings, nor did the Officer fail to consider the new
evidence advanced in support of the PRRA in light of those findings.
B.
Were the Officer’s findings in regard to
corroborating documentary evidence unreasonable?
[15]
Mr. Varatharasa argues that the Officer focused
on one imprecise statement in counsel’s submissions relating to EPDP
recruitment to unreasonably conclude that he had contradicted himself and that
the contradiction impacted the Officer’s overall assessment. He also submits
that the Officer unreasonably concluded that there was insufficient evidence to
link the deaths of his father and brother to the EPDP, by imposing a burden on
him to explain EPDP actions. He argues that the Officer unreasonably assumed
how Sri Lanka medical and police authorities would act in light of the father’s
and brother’s deaths and unreasonably assigned little weight to the letters
from family and neighbours despite the matters set out in those letters being addressed
in his sworn statement. Finally, Mr. Varatharasa argues that the Officer acted
unreasonably in selectively relying on the evidence relating to the persecution
and mistreatment of Tamils in Sri Lanka. I am not convinced by Mr. Varatharasa’s
arguments.
[16]
The Officer was entitled to rely on the
submissions advanced in support of the PRRA including the allegation that the
EPDP had previously attempted to recruit Mr. Varatharasa. This statement was
advanced in support of the argument of perceived links to the LTTE and contradicted
prior evidence. However, the Officer did not consider this inconsistent fact in
isolation. The Officer noted that on this point, Mr. Varatharasa’s prior statements
were to be preferred. The Officer then proceeded to consider and address the
allegation of harassment by the EPDP of Mr. Varatharasa’s family as set out in
the various affidavits, letters, government documents and the psychological
report advanced in support of the PRRA.
[17]
In reviewing the Officer’s treatment of the
evidence, the Court is required to consider whether the conclusion that the
evidence was insufficient to establish the EPDP’s current interest in Mr.
Varatharasa was reasonably available to the Officer.
[18]
I agree with Mr. Varatharasa’s submissions that
it is not for a claimant to explain the actions of an alleged agent of
persecution or the conduct of government officials. However, in this case, the
Officer’s concerns were not limited to these issues. The Officer undertook a
detailed consideration of each piece of documentary evidence. The Officer noted
inconsistencies between Mr. Varatharasa’ s evidence and the evidence set out in
other documents relating to an alleged attack on the father, the timing of the
brother’s death and the absence of any indicia as to how or why family members
attributed these incidents to the EPDP.
[19]
With regard to the letters of family members and
friends, the Officer noted concerns with the absence of any identity documents
to corroborate the identity of the writers and the absence of original
envelopes. In light of these concerns, and absent any other compelling
evidence, it was reasonably open to the Officer to conclude that the evidence
was insufficient to establish a current interest by the EPDP. While other
conclusions might also have been reasonably available to the Officer, the
conclusion reached is well within the range of reasonable outcomes. The reasons
advanced in support of the conclusion are justified, transparent and
intelligible.
[20]
I have previously addressed the Officer’s
consideration of the new country condition evidence and am similarly not
convinced that the Officer selectively relied on some evidence to the exclusion
of other evidence. The Officer was under no obligation to refer to all
documents submitted and is presumed to have considered all of the evidence. In
this case, the Officer noted and considered the extensive documentary evidence,
acknowledged contradictory evidence and preferred some documentary evidence
over others. It is not the role of this Court to reweigh the documentary
evidence (Pathinathar v Canada (Minister of Citizenship and Immigration),
2015 FC 1312 at paras 15 - 17).
C.
Did the Officer unreasonably conclude that the
evidence of discrimination did not rise to the level of persecution?
[21]
Mr. Varatharasa argues that in acknowledging
that Tamils do suffer discrimination in Sri Lanka but that discrimination does
not rise to the level of persecution, the Officer unreasonably failed to engage
in an analysis of why the discrimination evidenced in the country condition documentation
does not amount to persecution. I disagree.
[22]
The Officer engaged in a detailed analysis of
the country condition documentation. In doing so, the Officer noted discrimination
in the areas of government employment, university education as well as access
to justice and observed that past human rights abuses may not have yet been
fully addressed by the government. However, the Officer also found that Tamils
are not systematically apprehended or assumed to be affiliated with the LTTE
nor systematically targeted by paramilitary groups. These factors led the
Officer to conclude that the evidence “… did not
demonstrate that this discrimination amounts to persecution.”
[23]
In reviewing the Officer’s conclusion on
persecution, I would have preferred a more detailed analysis in support of the
conclusion reached. However, I am mindful that in conducting a review on a
standard of reasonableness, the validity of the reasons or the result is not
impugned by the fact that a decision-maker did not address the arguments,
jurisprudence or other details the reviewing judge would have preferred (Newfoundland
and Labrador Nurse’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 16). A review of the documentary evidence reflects that despite
the government’s failure to have fully addressed past abuses there have been
positive developments in the protection of human rights in Sri Lanka and political
commitments to action aimed at benefitting the Tamil population. After
reviewing the reasons and reviewing the record, I am satisfied that the
conclusion reached was reasonably open to the Officer.
D.
Did the Officer unreasonably fail to consider
the elements of Mr. Varatharasa’s profile cumulatively?
[24]
Mr. Varatharasa argues that the Officer failed
to consider his risk arising out of perceived LTTE connections in concert with
his psychological health. I disagree. The Officer acknowledged and addressed Mr.
Varatharasa’s argument that his mental health issues would place him at greater
risk from agents of persecution. In considering the issue, the Officer observed
that Mr. Varatharasa had failed to demonstrate risk at the hands of any agent
of persecution or that he was at risk of persecution or discrimination based on
his mental health. It was on this basis that the Officer concluded that his mental
health did not place him at an increased risk of harm. This finding was not unreasonable.
IV.
Conclusion
[25]
The Officer conducted a comprehensive and
detailed analysis of Mr. Varatharasa’s application. The findings and ultimate
conclusions were reasonably open to the Officer and the refusal decision was
reasonable. The application is dismissed.
[26]
The parties have not identified a question of
general importance, and none arises.
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