Date: 20050810
Docket: IMM-8077-04
Citation: 2005 FC 1085
Ottawa, Ontario, Wednesday the 10th day of August 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
CHALS CORRERA
Applicant
and
SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] Mr. Correra is Sinhalese and a citizen of Sri Lanka. He fears returning to Sri Lankabecause he says that the security forces there believe that he supports the Liberation Tigers of Tamil Eelam ("LTTE"). On June 1, 2004, he received a negative pre-removal risk assessment ("PRRA"). The officer who conducted the assessment concluded that adequate state protection is provided to the Sinhalese majority in Sri Lanka. While acknowledging that Mr. Correra had been imprisoned by the security forces until his father paid a bribe, the officer concluded that Mr. Correra had recourse to "any number of state apparatus to redress the legality of his detention". Ultimately, the officer concluded that Mr. Correra had failed to present clear and convincing proof of the inability of Sri Lanka to protect him.
[2] On June 29, 2004, Mr. Correra's counsel advised the PRRA office that Mr. Correra's father, Patrick Curera, had been killed by security forces in Sri Lanka because he had refused to co-operate with them when they came to his home asking about Mr. Correra. Ultimately, a second PRRA application was submitted on this basis, which was considered by a second PRRA officer ("officer").
[3] The officer accepted the following three items to be "new" evidence, which could properly be considered on the second PRRA application pursuant to subsection 113(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27:
1. An affidavit sworn by Mr. Correra's mother in which she swore:
02. That on 26.11.2003 the Sri Lanka Army Officers came to my house and asked for Charles Gamini Curera.
03. My husband Patrick Curera told them that the whole family of Charles Gamini Curera has left Sri Lanka.
04. Then the Army Officers took my husband.
05. There after I went to the Police Station to make a complaint they refused to entertain the complaint.
06. There after I went and met a Lawyer and sought for advice, he asked to [sic] before the Human Rights Commission.
07. Subsequently on 11.12.2003 I came [sic] know that a dead body is bound [sic] near the Kakkapalliya Road.
08. I went there and identified the body to be that of my husband, Patrick Curera. At the post-mortem examination it was revealed that the death has been caused due [sic] internal bleeding as a result of sever [sic] assault.
2. An extract from the Register of Deaths that showed that Mr. Correra's father had died of "EXCESSIVE BLEED FROM INTERNAL WOUNDS DUE TO ASSAULT".
3. A statement from Mr. Correra's wife in which she said, among other things, that:
On July 19, 2003, my husband was released after his father paid the police a bribe of 50,000 rupees. After he was released, we stayed with his friend in Nuwaraeliya as we felt our lives were in danger. While in Nuwaraeliya, my husband was treated for the injuries he sustained while he was detained.
Also, during this time, the army came to our house and my in-laws house in Marawilla on a number of occasions in search of my husband. When my father-in-law told them that he did not know of his son's whereabouts, he was assaulted. He went to the police to lodge a complaint about the assault but it was not recorded. He met with a human rights lawyer who he instructed to take legal action against the police for neglecting to carry out their duties.
[...]
Not long after my father-in-law's death, army personnel went to my parents' house on two occasions inquiring about my husband and threatened them. In addition, army personnel continued to inquire about my husband's whereabouts at my mother-in-law's house. They have gone to her house approximately twelve times and have threatened her as well.
[4] After considering this new information the officer issued a second, negative PRRA. Mr. Correra brings this application for judicial review from that decision.
[5] In rejecting Mr. Correra's second application, the officer made the following observations and findings.
- Mr. Correra's mother's affidavit did not say that the army or security forces killed her husband, and there "is insufficient persuasive evidence to indicate the army or security officers killed the applicant's father. He may have been a victim of crime".
- No evidence was submitted as to what advice the lawyer gave to Mr. Correra's mother.
- While in her statement Mr. Correra's wife said that her father-in-law's death was published in the newspapers, no newspaper articles were submitted, the wife did not indicate why the army personnel were inquiring at her parents' home about her husband or what they said to her parents, and while she said that her father-in-law was advised to commence a lawsuit, the evidence did not support the conclusion that he had.
- The new evidence indicated that Mr. Correra's father died, but did not support that he was killed by the army or authorities because he refused to co-operate with the army.
- There was insufficient persuasive evidence to indicate why Mr. Correra's father was taken by the army.
- The evidence did not support the conclusion that the authorities would be interested in Mr. Correra upon his return to Sri Lanka.
- There is insufficient persuasive evidence to indicate that the state is unwilling and unable to provide protection to Mr. Correra.
[6] To the extent that the officer made findings of fact (for example, whether the evidence supported the finding that Mr. Correra's father was killed by the army) the standard of proof to be applied to the evidence by the officer is the balance of probabilities. See: Li v. Canada (Minister of Citizenship and Immigration) (2005), 249 D.L.R. (4th) 306 (F.C.A.) at paragraphs 9 and 10; Alam v. Canada(Minister of Citizenship and Immigration) (2005), 41 Imm. L.R. (3d) 263 (F.C.) at paragraph 8. Once made, those findings may only be interfered with by this Court if they were made in a perverse or capricious manner, or without regard to the evidence before the officer. See: paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7 and also 2005 SCC 40">Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at paragraphs 37 and 38.
[7] When an officer conducting a PRRA then moves to apply the law to the facts as found by the officer, the standard of review is reasonableness simpliciter. Thus, when the decision of a PRRA officer is read globally and as a whole, the standard of review is reasonableness simpliciter. See: Kim v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 540 (F.C.) at paragraph 22.
[9] In the present case, the officer made no finding that the new evidence before her was not credible. She accepted that:
- The Sri Lankan army came to Mr. Correra's parents' home asking for Mr. Correra.
- After Mr. Correra's father told them that Mr. Correra and his family had left Sri Lanka, the army took Mr. Correra's father away.
- When his mother went to the police station to complain about this, the police refused to take her complaint.
- Approximately 15 days after he was taken by the army, Mr. Correra's father's body was found.
- The cause of death was internal injuries caused by a severe assault.
- After his father's death, the army went to Mr. Correra's parents-in-law's home, inquiring about him.
[10] This evidence was, as a matter of law, capable of supporting the inferences that the army or security forces killed Mr. Correra's father in the course inquiring into Mr. Correra's whereabouts, and that the security forces or army were still trying to locate Mr. Correra, even after his father was killed. While capable of supporting those inferences, the officer was entitled to reject such inferences if the totality of the evidence, weighed on a balance of probabilities, was equally consistent with other inferences or conclusions.
[11] Placed against the evidence that supported those inferences, the officer looked to and assessed:
- The possibility that Mr. Correra's father was a victim of crime, without pointing to any evidence that made this more than speculation.
- The absence of evidence as to what the lawyer told Mr. Correra's mother when she sought legal advice after the army took her husband.
- The absence of a newspaper article about the father's death, without mention of the explanation provided for its absence.
- The absence of evidence as to why the security forces were looking for Mr. Correra and exactly what they said, in circumstances where it is not clear why the officer considered it reasonable to assume that the army officials would have said anything more than "where is he?"
- The absence of evidence as to whether Mr. Correra's father did commence a lawsuit as a result of his prior beating by the security forces.
- The absence of express evidence that the army took Mr. Correra's father because he would not co-operate with them, as opposed for some other unspecified reason.
[12] With respect, much of what the officer relied upon in order to dismiss the credible evidence before her was of questionable or tangential relevance, or was conjecture or speculation on the part of the officer.
[13] When weighed against the evidence accepted by the officer as being credible, it was perverse and capricious for the officer to conclude on the basis that she did that there was insufficient evidence to support findings that the army or security forces killed Mr. Correra's father in the course of an investigation into Mr. Correra's whereabouts, and that they were continuing to try to locate Mr. Correra.
[14] The feared agent of persecution was the Sri Lankan army or security forces. The officer's flawed findings with respect to the actions and attitude of the agent of persecution are fatal to her ultimate conclusions that the evidence did not support the view that state authorities would be interested in Mr. Correra upon his return to Sri Lanka, and that there was insufficient evidence to indicate that the state is unwilling and unable to provide protection to Mr. Correra.
[15] It follows that the application for judicial review will be allowed.
[16] Counsel posed no question for certification and I am satisfied that no question arises on this record.
ORDER
[17] THIS COURT ORDERS THAT:
1. The application for judicial review is allowed, and the decision of the pre-removal risk assessment officer dated September 13, 2004 is hereby set aside.
2. The matter is remitted for redetermination before another officer.
"Eleanor R. Dawson"
______________________________
Judge
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