Ratnasingham v. Canada (Minister of Citizenship and Immigration), 2005 FC 740

Date: 20050527

Docket: IMM-2829-04

         Citation: 2005 FC 740    

BETWEEN:

                                                 SATHIYASRI RATNASINGHAM

                                                     RAMYA MURALITHARAN

                                                THUVARAGA MURALITHARAN

                                                 BIRUNTHAN MURALITHARAN

                                           TRAMILEELAVAN MURALITHARAN

                                                                                                                                           Applicants

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

GIBSON J.:

INTRODUCTION

[1]                These reasons follow the hearing of an application for judicial review of a decision of a Pre-Removal Risk Assessment Officer (the "Officer") dated the 5^th of February, 2005 in which the Officer determined that the Applicants would not be subject to risk of torture, risk to life or risk of cruel and unusual treatment or punishment if removed to Sri Lanka, and therefore are not persons in need of Canada's protection.

[2]                This application for judicial review was one of three such applications, heard together at Toronto on the 25^th and 26^th of April, 2005, in which the issue of institutional bias or lack of independence and impartially on the part of Pre-Removal Risk Assessment Officers, during the period from the 12^th of December, 2003 to the 8^th of October, 2004 when they were situated, in an organizational sense, within the Canadian Border Security Agency (the "CBSA") of the Government of Canada, was raised. That issue is addressed in reasons for decision in one of the other two matters, Chea Say and Vouch Lang Song vs. The Solicitor General of Canada^[1]. Those reasons, as they relate to the institutional bias issue are simply incorporated by reference into these reasons.

BACKGROUND

[3]                Sathiyasri Ratnasingham is an adult female, Tamil citizen of Sri Lanka. The other four (4) Applicants are her children. The eldest of her four (4) children was born in Sri Lanka. The other three (3) were born in Switzerland.

[4]                Sathiyasri Ratnasingham (the "principal Applicant") married in Sri Lanka in 1983. Her husband was accused of being a member of the Tamil Tigers. He was held in detention from May, 1984 to December, 1986. During that time, the principal Applicant was harassed by Sri Lankan Security Forces. She was later harassed by the Indian Peace Keeping Forces after they arrived in Sri Lanka in 1987.

[5]                In January of 1988, the principal Applicant, together with her eldest child, fled Sri Lanka to Madras, India. She alleges that she continued to be harassed there. In the result, in June of 1989, she fled from India to Switzerland where she remained on humanitarian and compassionate grounds. The principal Applicant's husband followed her to Switzerland in 1990 but lived apart from her. The principal Applicant determined that her husband was less than faithful to her. Given this determination, taken together with the principal Applicants's and her children's insecure status in Switzerland, the principal Applicant and her children allege that they travelled to India in February of 1997.

[6]                The difficulties that the principal Applicant had earlier encountered in India are alleged to have reoccurred. In the result, together with her children, she relocated to Canada in November of 1997 where the Applicants made a Convention refugee claim. The Applicants' Convention refugee claim was heard by the Convention Refugee Determination Division of the Immigration and Refugee Board in July, 1998 but was not decided. The principal Applicant's husband had followed his family to Canada. He made a separate Convention refugee claim under a false name. The circumstances of his claim and his relationship to the Applicants herein was discovered. In the result, the Applicants' claim was reheard, together with the claim of the principal Applicant's husband. The claims were rejected, in the case of the principal Applicant's husband, on the basis that he was excluded from consideration for Convention refugee status. The principal Applicant and her four (4) children were assessed against Sri Lanka not, in the case of the three (3) children born in Switzerland, against Switzerland. The CRDD determined that the three (3) children born in Switzerland were either Sri Lankan or had a right to Sri Lankan citizenship. The principal Applicant's and her children's claim was rejected largely on the basis of credibility.

[7]                An application for leave and for judicial review of the CRDD's decision was dismissed on the 18^th of June, 2002.

THE DECISION UNDER REVIEW

[8]                An application for a Pre-Removal Risk Assessment was deemed to have followed on behalf of the Applicants herein. It was rejected for the principal Applicant and her eldest child because the PRRA Officer concluded they were not likely, after so many years absence from Sri Lanka, to suffer serious harm by reason of their illegal leaving from Sri Lanka. With respect to the other three (3) Applicants, the PRRA Officer determined that they were unlikely to be at serious risk by reason of their relationship to the principal Applicant's husband, their father. Finally, the PRRA Officer relied on changed country conditions in Sri Lanka to find against all of the Applicants.

THE ISSUES

[9]                The issues on this application for judicial review were: first, the alleged failure on the part of the PRRA Officer to consider the Applicants' fear of torture, risk to life or risk of cruel and unusual treatment or punishment based upon the risk of recruitment of the principal Applicant's four (4) children by the Tamil Tigers; and secondly, the allegation on behalf of all of the Applicants of perceived institutional bias or lack of institutional independence and impartiality on behalf of those administering the PRRA program.

ANALYSIS

1)         Failure on the part of the PRRA Officer to consider the Applicants' concern regarding the risk of recruitment of the principal Applicant's four children

by the Tamil Tigers

[10]            In counsel's submissions on the Applicants' PRRA submissions, the following appears:

As described above in the "Risks" section, the children face forced recruitment by the LTTE if they are returned to Sri Lanka. They range in age from seven- to nineteen-years old. Boys and girls as young as twelve years old continue to be recruited by the LTTE and an LTTE leader has been quoted as saying that, "all students regardless of age must join the final phase of the LTTE's struggle for Eelam." ...

Thus there is a serious possibility that [the] children faced [sic] enforced recruitment to the LTTE. As the LTTE is an organization which has been found by the courts in Canada to have [sic] engage [sic] in terrorism and indeed is an illegal terrorist organization in Canada, I would argue that the children's refusal to join the LTTE puts them at risk of persecution and torture and entitles them to refugee protection.^[2]                                                                                [one citation omitted]

[11]            In his extensive notes to file in support of the decision under review, the PRRA Officer acknowledges the foregoing submission. He notes:

In his submissions, counsel submits that the Applicants are at risk as relatives of an alleged LTTE supporter. In addition, the four children are at risk of forced recruitment by the LTTE.^[3]

[12]            The LTTE is sometimes referred in these reasons as the Tamil Tigers.

[13]            Despite the Officer's acknowledgment that risk of forced recruitment of the principal Applicant's four children existed if the Applicants are removed to Sri Lanka, the issue is not mentioned again in the Officer's very extensive notes to file. At page 31 of the Applicants' Application Record, under the subheading "Assessment", the Officer writes:

The CRDD decision [in respect of the Applicants] dates to November 19, 2001. My mandate is to assess changes in personal circumstances and country conditions since that time to determine whether the Applicants are now at risk as defined in sections 96 and 97 of the Act. Given that the CRDD did not assess risk under section 97, I must also determine whether the facts, as determined by the CRDD, establish that they are persons in need of protection as defined by these new risk definitions.

[14]            The "new risk definitions" referred to by the Officer extend to a danger, believed on substantial grounds to exist of torture within the meaning of Article 1 of the Convention Against Torture and risk to life or to a risk of cruel and unusual treatment or punishment, all risks that, at least arguably, the four children and their mother might face if the children were subjected to recruitment by the Tamil Tigers in Sri Lanka whether or not they succumbed to recruitment overtures.

[15]            In Kulendrarajah v. Canada (Minister of Citizenship and Immigration)^[4], I found that the Convention Refugee Determination Division erred in a reviewable manner by not fully assessing the risk to children of LTTE recruitment. There, as here, no "separate analysis" of that risk was conducted. I further concluded that the analysis of the CRDD with respect to "changed country conditions" was simply inadequate to address the specific issue of risk of recruitment. I wrote at paragraph [17]:

Further, the RPD's analysis regarding the impact of the peace talks on the claims of the minor Applicants is at a level of generality that is, of itself, insufficient to support the RPD's conclusion with respect to the minor Applicants. In Cuadra v. Canada (Solicitor General ) ..., the Court, after noting that the tribunal there found that: "...the documentary evidence points to positive steps taken and progress made towards that objective [of diminishing the influence of the Sandinistas]" wrote:

Again, a more detailed analysis of the conflicting evidence in respect of a change in circumstances was necessary to meet the requirement that the change be meaningful and effective enough to render the genuine fear of the appellant unreasonable and hence without foundation.

I reach the same conclusion regarding the RPD's analysis, if it can be called that, regarding the impact of changed country conditions in Sri Lanka on the claims of the minor Applicants.

[16]            Certainly on the facts of this matter, the analysis of the Officer of the impact of changed country conditions is extensive and detailed. That being said, I am satisfied that the failure to in any way relate that analysis to the risk of forced recruitment of the children by the Tamil Tigers amounts to reviewable error, whatever the standard of review might be and, in these particular circumstances, where an issue is simply ignored, I am satisfied that the deference owed to a PRRA Officer is minimal.

[17]            In the result, on the basis of this issue alone, I am satisfied that this application for judicial review must be allowed.

2)         Perceived institutional bias or lack of institutional independence and impartiality on behalf of those administering the PRRA Program

[18]            In light of my conclusion with regard to the issue just discussed, I need not turn to this second issue. As earlier noted, I have addressed this issue in other reasons issued concurrently with these reasons^[5], I decline to do so again here. Suffice it to say that I am satisfied that my analysis of this issue in that other context applies without modification in respect of this matter.

CONCLUSION

[19]            Based on the foregoing brief analysis, this application for judicial review will be allowed, the decision of a Pre-Removal Risk Assessment Officer that is under review will be set aside and the Applicants' application will be referred back for rehearing and redetermination.

CERTIFICATION OF A QUESTION

[20]            At the close of the hearing of this application for judicial review, counsel were advised that the application would be allowed. Counsel were consulted on the issue of certification of a question. Neither counsel recommended certification of a question and the Court itself is satisfied that no serious question of general importance that would be determinative of an appeal on this application for judicial review arises. In the result, no question will be certified.

_____________________________

        J.F.C.

Ottawa, Ontario

May 27, 2005

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-2829-04

STYLE OF CAUSE:                           Sathiyasri Ratnasingham et al v.

The Solicitor General for Canada et al

PLACE OF HEARING:                     Toronto, Ontario

DATE OF HEARING:                       April 25 and 26, 2005

REASONS FOR ORDER:                GIBSON J.

DATED:                                              May 27, 2005

APPEARANCES:

Lorne Waldman

Leigh Salsberg

Brena Parnes

Toronto, Ontario

FOR APPLICANT(S)

Marie-Louise Wcislo

Anshumala Juyal

Rhonda Marquis

Toronto, Ontario

FOR RESPONDENT(S)

SOLICITORS OF RECORD:

Waldman and Associates

Barristers and Solicitors

Toronto, Ontario

FOR APPLICANT(S)

John H. Sims, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT(S)