Date: 20171110
Docket: IMM-1349-17
Citation: 2017 FC 1034
Ottawa, Ontario, November 10, 2017
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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SELVARJININI
THANABALASINGAM
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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.
Introduction
[1]
This is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] of a decision [Decision] by an Immigration Officer [the Officer]
that the Applicant is not a Convention refugee, in the meaning of section 96 of
the IRPA; not a person who has compelling reasons arising out of previous
persecution, torture, treatment or punishment for her to refuse to avail
herself of the protection of the country she left in the meaning of subsection
108(4) of the IRPA; nor a person with sufficient humanitarian and compassionate
considerations which would justify exempting her from the requirements of the
IRPA. The Applicant is seeking an order to quash the Officer’s Decision dated
January 25, 2017 and return the matter to the visa office for a new
determination by an impartial, competent visa officer.
[2]
For the reasons that follow, the application is
rejected.
II.
Background
[3]
The Applicant was born in September 1968 and is
a Tamil citizen of Sri Lanka, where she had been living before moving to India
in 1998.
[4]
The Applicant has two elder sisters who are
Canadian citizens and a younger brother who has permanent residency in
Switzerland.
[5]
In her affidavit, she claims that while living
in Sri Lanka she was suspected of having ties to the Liberation Tigers of Tamil
Eelam [LTTE], although she denies that she or her family had any connexion with
the organization. She further claims that she was sexually harassed when
searches were carried out of the family home and was assaulted and physically
abused on six occasions when in prison. She claims the authorities have details
of her and she would have a problem if she went back to Sri Lanka.
[6]
In her interview however, the Applicant
indicated (on two occasions) that she was twice captured by the Army and that
her father had her released on payment of money. She did not mention being
sexually harassed in searches, or assaulted and physically abused when being
held by the Army.
[7]
She was asked to join the LTTE movement, and
fearing the consequences, left Sri Lanka with her father in 1998, leaving
behind their house and properties. She continues to live in India without any
residential status, but without any difficulties. Her Canadian niece and nephew
have been providing support from Canada and co-sponsored the Applicant.
[8]
In February 2010, she applied for Canadian
Permanent Residence as a refugee under its associated programs.
[9]
In 2011, after the end of the war, the Applicant’s
father returned to Sri Lanka and discovered that his house was occupied by the
Eelam People's Democratic Party [EPDP] supporters. According to an unknown
person, who advised the Applicant’s sister in Canada, her father was killed
after filing a complaint against EPDP supporters occupying their house and the
matter was not investigated.
III.
Impugned Decision
[10]
On January 25, 2017, the Applicant was
interviewed by an immigration Officer. He concluded that the information
provided was insufficient to satisfy him that the Applicant met the requirements
of either the refugee class or the exception of subsection 108(4), or that
there was evidence of sufficient humanitarian and compassionate factors. His
conclusions may be summarized as follows:
- She left Sri Lanka almost twenty years ago, so any interest
authorities may have had in the past is likely much diluted or
nonexistent.
- Neither she nor her family had ties to groups that were of
interest to the government before the war ended, or today.
- At no time during her interview did she raise concerns that she
was sexually and physically abused in Sri Lanka before leaving for India,
despite concerns being mentioned in the materials filed by her
representative.
- While there are human right violations reported that continue
to affect women in Sri Lanka’s North and East, based on the information
provided relating to her particular circumstances and her profile, she
could return to Sri Lanka today to live there.
- Her repeated concern for her security is that if something were
to happen to her, she would be alone and that there is no one to take care
of her like her father, or who would know if anything happened to her.
- The humanitarian grounds advanced by the Applicant were that
she has moral support in Canada and can obtain work in a restaurant, which
are not sufficient, whereas she was not facing any difficulties in India
where many women reside alone.
- There are no compelling reasons arising out of previous
persecution etc. that would support an exception pursuant to subsection
108(4) of the Act.
IV.
Legislative Framework
[11]
The following provisions of the IRPA are
applicable in these proceedings:
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Convention refugee
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Définition de
réfugié
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96 A Convention refugee is a person who, by reason of a well-founded
fear of persecution for reasons of race, religion, nationality, membership in
a particular social group or political opinion,
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96 A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
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(a) is outside each of their countries of nationality and is unable
or, by reason of that fear, unwilling to avail themself of the protection of
each of those countries; or
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a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
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(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
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b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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Cessation of Refugee Protection
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Perte de l’asile
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Rejection
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Rejet
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108 (1) A
claim for refugee protection shall be rejected, and a person is not a
Convention refugee or a person in need of protection, in any of the following
circumstances:
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108 (1) Est
rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou de
personne à protéger dans tel des cas suivants :
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[…]
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[…]
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(e) the
reasons for which the person sought refugee protection have ceased to exist.
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e) les
raisons qui lui ont fait demander l’asile n’existent plus.
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Exception
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Exception
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(4) Paragraph (1)(e) does not
apply to a person who establishes that there are compelling reasons arising
out of previous persecution, torture, treatment or punishment for refusing to
avail themselves of the protection of the country which they left, or outside
of which they remained, due to such previous persecution, torture, treatment
or punishment.
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(4) L’alinéa (1)e) ne s’applique pas
si le demandeur prouve qu’il y a des raisons impérieuses, tenant à des
persécutions, à la torture ou à des traitements ou peines antérieurs, de
refuser de se réclamer de la protection du pays qu’il a quitté ou hors duquel
il est demeuré.
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[12]
The following provisions of the Immigration and
Refugee Protection Regulations [IRPR]:
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Member of Convention refugees abroad class
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Qualité
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145 A
foreign national is a Convention refugee abroad and a member of the
Convention refugees abroad class if the foreign national has been determined,
outside Canada, by an officer to be a Convention refugee.
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145 Est un
réfugié au sens de la Convention outre-frontières et appartient à la
catégorie des réfugiés au sens de cette convention l’étranger à qui un agent
a reconnu la qualité de réfugié alors qu’il se trouvait hors du Canada.
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Humanitarian-protected Persons Abroad
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Personnes protégées à titre humanitaire
outre-frontières
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Person in similar circumstances to those of a Convention refugee
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Personne dans une situation semblable à celle d’un réfugié au sens
de la Convention
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146 (1) For
the purposes of subsection 12(3) of the Act, a person in similar
circumstances to those of a Convention refugee is a member of the country of
asylum class.
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146 (1) Pour
l’application du paragraphe 12(3) de la Loi, la personne dans une situation
semblable à celle d’un réfugié au sens de la Convention appartient à la
catégorie de personnes de pays d’accueil.
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Member
of country of asylum class
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Catégorie
de personnes de pays d’accueil
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147 A
foreign national is a member of the country of asylum class if they have been
determined by an officer to be in need of resettlement because
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147 Appartient
à la catégorie de personnes de pays d’accueil l’étranger considéré par un
agent comme ayant besoin de se réinstaller en raison des circonstances
suivantes :
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(a) they are
outside all of their countries of nationality and habitual residence; and
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a) il se
trouve hors de tout pays dont il a la nationalité ou dans lequel il avait sa
résidence habituelle;
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(b) they
have been, and continue to be, seriously and personally affected by civil war,
armed conflict or massive violation of human rights in each of those
countries.
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b) une
guerre civile, un conflit armé ou une violation massive des droits de la
personne dans chacun des pays en cause ont eu et continuent d’avoir des
conséquences graves et personnelles pour lui.
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V.
Issues
[13]
The following issues arise in this application:
1.
Was the Officer’s Decision concluding that the
Applicant is not a refugee, or a humanitarian protected person abroad unreasonable?
2.
Was the Officer’s Decision unreasonable in concluding
that the Applicant did not establish the existence of compelling reasons pursuant
to subsection 108(4) of the IRPA, arising from her previous persecution, to
refuse to avail herself of Sri Lanka?
VI.
Standard of Review
[14]
The Officer’s decision on an application for
permanent residence is reviewable on the reasonableness standard.
VII.
Analysis
[15]
The Court finds that there are no reviewable
errors, while the evidence and explanation is sufficient to reasonably support
the three conclusions of the Officer denying her permanent residency. Any fair
reading of the interview notes demonstrate that her inducement for becoming a
permanent resident of Canada, repeated on several occasions, was because she
wanted to have the support of her sisters, and because she could obtain
employment in Canada.
[16]
The Applicant never mentioned during her
interview that she would be persecuted in Sri Lanka because she is a woman.
Neither did she mention the fact alleged in her affidavit of being sexually
harassed during searches, or assaulted or physically abused in prison. Moreover
she stated twice that she was imprisoned on only two occasions. These appear to
have had financial considerations, inasmuch as her father paid for her release.
Instead. she stated repeatedly that she did not want to return there because
she did not want to be alone, as for example:
Q. Why could you not go back to Colombo to
live? The war is over now since 2009. The events that happened to you happened
a long time ago.
A. The life is not secure there. I don't want
to go there.
Q. Why is it not secure?
A. I have no one in SL. No one is there to
take care of me.
Q. Your family abroad take care of you now,
and you can live in India. Any employment in India?
A. No.
Q. How do you survive economically?
A. My sister's children take care of me. My
brother too.
Q. The only reason you don't want to go back
to SL is because there is no one there to take care of you?
A. Life is not secure there, when I was
there, my father was taking care of me. No one would come to know if something
happened to me.
[17]
The Applicant submits that the Officer failed to
give any consideration to the country conditions in Sri Lanka. The Court
concludes that they were considered, but with reference to the profile of the
Applicant, which the Applicant also challenges. The Court disagrees that there
is reliable evidence to challenge the Officer’s conclusions rejecting that she
is on a list of associates to the LTTE, the evidence of her father’s death in
2010. In addition, successful refugee claims by her sister and brother are not relevant
without evidence supporting the claims and grounds for approval.
[18]
Based on the country conditions evidence in
relation to the Applicant’s profile, it is not unreasonable to conclude after
20 years, even accepting that she may have been sexually harassed during
searches or mistreated in prison, that there is any reason to reject the
Officer’s conclusion that the Applicant would not remain a person of interest
to the authorities on her return to Sri Lanka. The Court disagrees with the
Applicant’s submission that a change in country conditions over a period of 20
years is not relevant to how authorities would perceive the Applicant on her
return to Sri Lanka.
[19]
With respect to her vulnerability as a single
woman in Sri Lanka and the argument of the Officer’s failure to consider the risks
for a single woman in Sri Lanka or disregarding the Gender Guidelines, the
Applicant did not present evidence or raise these issues as concerns in her
interview. In any event, the country condition evidence does not support a
profile of being a single woman without relatives living in Sri Lanka as
sufficient to support a refugee claim. As indicated, there is sufficient
evidence in the record for the Officer to conclude that her application for permanent
residence was based on the “moral support of her family
and opportunities in Canada” as opposed to subjective fears of
persecution under section 96 of the IRPA.
[20]
With respect to humanitarian and compassionate considerations,
the Court does not accept that the argument of Applicant’s counsel that “[t]he applicant is alone in India. Her desire is to be
reunited with her sisters in Canada. What more compelling reason can the
applicant provide?” Although sympathetic to the situation of the
Applicant, the Court nevertheless disagrees that these arguments based on
bettering her living conditions by reuniting with family members would be
sufficient to challenge the Officer’s rejection of her humanitarian claim.
[21]
Of the factors considered to be relevant in Kanthasamy
v Canada (Citizenship and Immigration), 2015 SCC 61 at paragraph 27 [Kanthasamy],
the Applicant relies only upon that of the “consequences
of the separation of relatives”. Moreover, the Applicant has lived “without difficulties” in India for a period
approaching 20 years. The Court finds that this would be a relevant factor in
determining whether her situation is such as “would
excite in a reasonable man [sic] in a civilized community a desire to
relieve the misfortunes of another — so long as these misfortunes ‘warrant the
granting of special relief’ from the effect of the provisions of the
Immigration Act”: per Kanthasamy, at para 13, citing with
approval Chirwa v Canada (Minister of Citizenship and Immigration)
(1970), 4 IAC 338 at
350.
[22]
Finally, the Court concludes that there are no “compelling reasons”, as required by subsection
108(1)(e), arising out of previous persecution, torture, treatment or
punishment that would justify the Applicant gaining Canadian permanent
residency. The exceptional circumstances contemplated by the provision only
apply to a small minority of claims and are fact-specific. They are generally
defined to apply to those who suffered such appalling persecution that their
experience alone is a compelling reason not to return them even though
conditions have changed eliminating the fear of persecution: see Canada
(Minister of Employment and Immigration) v Obstoj, [1992] 2 FC 739 (FCA), Moya
v Canada (Citizenship and immigration), 2016 FC 315, at para 122. It is
reasonable for the Officer to have concluded that the Applicant did not
demonstrate the existence of compelling reasons that would allow her to benefit
from the exception in subsection 108(4) of the IRPA.
[23]
For all of the foregoing reasons, the Court
concludes that the Officer’s Decision meets the reasonableness requirements of
justification, transparency and intelligibility within the decision making
process, and falls within a range of possible, acceptable outcomes, which are
defensible in respect of the facts and the law, such that the application must
be dismissed.
VIII.
Conclusion
[24]
The application is dismissed and no question is certified
for appeal.
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