Date: 20050818
Docket: IMM-7194-04
Citation: 2005 FC 1113
Ottawa, Ontario August 18, 2005
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
KANANTHIRA VELAUTHAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Kananthira Velautham fled Sri Lanka in 2000 and found his way to the United Kingdom. He failed to obtain refugee protection in the U.K., so he applied at the Canadian High Commission in London for permanent residence in Canada. He asked to be recognized as a member of the Convention Refugees Abroad Class or the Country of Asylum Class (see ss. 145-147, Immigration and Refugee Protection Regulations, SOR/2002-227, set out in the attached Annex).
[2] A visa officer considered Mr. Velautham's application and dismissed it. The officer sent Mr. Velautham a two-page letter. However, the only actual reason given for the officer's decision is contained in a single sentence in that letter:
| At the present time the cease-fire continues to hold in Sri Lanka and conditions there do not constitute a civil war, armed conflict or massive violation of human rights.
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[3] Mr. Velautham argues that the officer failed to address the substance of his claim and to give adequate reasons for his decision. He asks me to order a reconsideration of his application. I agree that the officer's decision must be overturned and, therefore, will grant this application for judicial review.
I. Issues
1. Did the officer consider the grounds on which Mr. Velautham relied in his application for permanent residence?
2. Were the officer's reasons inadequate?
II. Analysis
[4] I will deal with the two issues together.
[5] To succeed on his refugee application, Mr. Velautham had to show he had a well-founded fear of persecution. He told the officer that he had been subjected to mistreatment by both the Liberation Tigers of Tamil Eelam (LTTE) and the Sri Lankan Army (SLA) before he left Sri Lanka in 2000. He feared returning to Sri Lanka because of the prospect of further mistreatment, as a young Tamil male, from both groups.
[6] The officer simply did not deal with this issue. His statement that a cease-fire exists in Sri Lanka, while true, does not answer the question whether Mr. Velautham had good grounds to be fearful of returning there. Both of the groups he feared continue to commit human rights violations. Breaches of the cease-fire are frequent.
[7] The officer's statement was directed more to the second prong of Mr. Velautham's application: whether he was a member of the country of asylum class. To succeed, Mr. Velautham had to show that he would be "seriously and personally affected by civil war, armed conflict or massive violation of human rights" (s. 147(b)). The officer found that the existence of a cease-fire contradicted Mr. Velautham's claim on this point. Again, however, the evidence before the officer suggested that there were ongoing hostilities and human rights violations in Sri Lanka even after the cease-fire took hold in 2002. His reasons took no account of the actual circumstances in Sri Lanka.
[8] In my view, the officer failed to address the basis of Mr. Velautham's application and to explain why it was being dismissed. I must, therefore, allow this application for judicial review. Neither party proposed a question of general importance for me to certify and none is stated.
JUDGMENT
This Court's Judgment is that:
1. The application for judicial review is allowed. The matter is referred back to the Board for reconsideration by another officer;
2. No question of general importance is stated.
Immigration and Refugee Protection Regulations, SOR/2002-227
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.
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
(a) they are outside all of their countries of nationality and habitual residence; and
(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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Règlements sur l'immigration et la protection des réfugiés, DORS/2002-227
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.
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 :
a) il se trouve hors de tout pays dont il a la nationalité ou dans lequel il avait sa résidence habituelle;
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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FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7194-04
STYLE OF CAUSE: KANANTHIRA VELAUTHAM v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 8, 2005
REASONS FOR JUDGMENT
AND JUDGMENT: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: AUGUST 18, 2005
APPEARANCES:
Ms. Helen P. Luzius FOR THE APPLICANT
Mr. John Provart FOR THE RESPONDENT
SOLICITORS OF RECORD:
Helen P. Luzius
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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