Date: 20000713
Docket: IMM-2392-99
BETWEEN:
UTHAYAKUMARI KANAGALINGHAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HANSEN J.
[1] This is an application for judicial review of a decision of a Post Claims Determination Officer ("PCDO") that the applicant is not a member of the Post-determination Refugee Claimants in Canada ("PDRCC") class.
[2] The applicant, a citizen of Sri Lanka, arrived in Canada on April 16, 1997 and claimed refugee status on the basis that she had been subjected to sexual harassment by members of the military and police. In its decision of January 19, 1998, the Convention Refugee Determination Division found the applicant to be "generally credible" but determined she was not a convention refugee because "... the events of persecution alleged by the claimant, ... were isolated incidents and do not lead to the conclusion that there is a serious possibility of prospective risk of persecution". The panel also found "... that it would be neither unduly harsh, nor unreasonable in all the circumstances for the claimant to settle in the proposed Internal Flight Alternative Colombo". The applicant"s judicial review of this decision was dismissed.
[3] In her subsequent application for consideration as a member of the PDRCC class, the applicant maintains that settlement in Colombo is not a viable option for her. She states that both incidents of sexual harassment involved the participation of the Sri Lankan military and police. Further, the last incident which included a death threat occurred in Colombo.
[4] In rejecting the application, the PCDO concluded that: "- having considered the documentary evidence, the circumstances of applicant"s case and the fact that Sri Lanka continues to be embroiled in ethnic conflict and inter-communal violence (which has been on-going for over fifteen years), there remains insufficient evidence to support a conclusion that the applicant would face an objective identifiable risk of life, extreme sanctions, or inhumane treatment which would not be faced generally by other citizens of Sri Lanka and which risk would apply in every part of that country"1.
[5] In reaching the decision, the PCDO referred to numerous documents about general country conditions including three which post-dated the applicant"s submissions. It is the PCDO"s consideration of these latter three documents which give rise to the issue on this judicial review: whether the PCDO violated the principle of fairness by considering documentary evidence which post-dated the applicant"s submissions without advising or providing her with an opportunity to respond.
[6] Counsel for the applicant acknowledged that the documents in question are from public sources and relate to general country conditions. They are:
| 1. U.S. Department of State, Sri Lanka Country Report on Human Rights Practices for 1998, released February 26, 1999.2 |
| 2. Sri Lanka: Internal Flight Alternatives: An Update, Research Directorate Immigration and Refugee Board, Ottawa, Canada, October 1998.3 |
| 3. Daily News, September 18, 1998.4 |
[7] In Mancia v. Canada (Minister of Citizenship and Immigration)5 the Federal Court of Appeal, with respect to documents such as the ones in question in this application, held that:
| ... fairness requires disclosure by the post claims determination officer where they are novel and significant and where they evidence changes in the general country conditions that may affect the decision. |
Further,
| Whether or not the failure by an immigration officer to disclose a document passes the fairness test ... is essentially a question of fact to be determined by the Motions Judge... |
[8] A review of the materials, included by the PCDO in the PDRCC Notes and Decision,6 provide an incite into what the officer considered to be relevant conditions in Sri Lanka and in particular in Colombo. In general, a comparison of the content of the first two above noted reports and the documents which pre-date the applicant"s submissions do not reflect a real change in the general country conditions in Sri Lanka. They speak of qualified progress with on-going incidents of serious violence and human rights abuses, especially in the north of Sri Lanka. While there are references to some new measures, they appear to be a continuation of similar previous initiatives aimed at controlling human rights abuses.
[9] The Daily News, September 18, 1998, quoted almost in its entirety by the PCDO, reported:
| A complete database containing details of arrests and information provided by arrested persons will soon be set up to minimise the inconvenience caused to Tamil speaking people in Colombo, some of whom are detained again and again. ... the IGP has also promised to attach at least one Tamil speaking officer to a number of police stations in Colombo to facilitate the questioning of Tamils detained by the security forces. |
The report went on to note that:
| These measures complement several steps taken by the Government to reduce inconvenience caused to Tamil speaking residents. They can report any instance of harassment by members of the security forces to the hotlines maintained by the top-level Anti-harassment Committee which requests the relevant authorities to probe the incidents. Furthermore, police and security forces personnel are required to issue receipts for arrests with full details and inform the suspects" relatives. |
[10] In my view, these measures represent novel and significant developments in Colombo which are particularly relevant to the applicant"s submissions concerning the availability of an internal flight alternative in that city. As such, they may have had a bearing on the outcome of the decision.
[11] In these circumstances, the failure to advise and to provide the applicant with an opportunity to respond constitutes a breach of the duty of fairness. Accordingly, the application for judicial review is allowed. The decision of the Post Claims Determination Officer dated April 19, 1999 is quashed and the matter is referred back for redetermination by a different Post Claims Determination Officer.
[12] I also note the recent decision of the Federal Court of Appeal in Minister of Citizenship and Immigration v. Haghighi7 which was released after the hearing of this matter. As this application for judicial review has been granted, it has not been necessary to ask for further submissions from counsel.
[13] Neither party had a question to submit for certification.
"Dolores M. Hansen"
J.F.C.C.
__________________
1 Certified Record at page 9.
2 Affidavit of Carla Sturdy, Exhibit "A".
3 Affidavit of Carla Sturdy, Exhibit "B".
4 Submitted to the Court at the hearing.
5 [1998] 3 F.C. 461 at 476.
6 Certified Record pages 2 to 10.
7 [2000] F.C.J. No. 854 (QL).
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