Date:
201212 18
Docket:
IMM-1989-12
Citation:
2012 FC 1493
Edmonton, Alberta, December 18, 2012
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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MANONMANY GOVINDASAMY
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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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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
Ms
Manonmany Govindasamy arrived in Canada from Sri Lanka in 2000. She claimed
refugee protection based on her Tamil ethnicity, and her fear of persecution
from the Sri Lankan Army (SLA), who suspected her of being associated with the
Liberation Tigers of Tamil Eelam (LTTE). However, in 2003, a panel of the
Immigration and Refugee Board concluded that her claim was not well-founded.
[2]
In
2011, Ms Govindasamy, age 84, applied for a pre-removal risk assessment (PRRA).
She alleged that she faced a risk of severe harassment, extortion,
discrimination and persecution if she returned to Sri Lanka. She emphasized
that her allegation of risk was based on her gender, her age, her status as a
widow, and her vulnerability to being targeted by militant groups.
[3]
The
PRRA officer found that Ms Govindasamy had not established that she faced a
substantial risk to her life or of cruel and unusual treatment if she returned
to Sri Lanka.
[4]
Ms
Govindasamy argues that the officer’s decision was unreasonable because it was
based on unrepresentative and outdated excerpts from the documentary evidence.
She asks me to quash the officer’s decision and order a reassessment by a
different officer.
[5]
I
agree that the officer’s decision was unreasonable and must, therefore, allow
this application for judicial review.
II. Ms Govindasamy’s
Submissions
[6]
Ms
Govindasamy made extensive references to documentary evidence of conditions in Sri Lanka in her submissions to the PRRA officer, showing:
• ethnic
tensions are high, perhaps worse than ever;
• government
claims of reform are not reflected in reality;
• Tamils have
been arbitrarily arrested or detained in Colombo;
• returnees
from abroad are perceived to be wealthy and are targeted for extortion;
• disappearances
and abductions, including for purposes of extortion, are widespread, especially
for Tamils, women, and residents of the north; and
• politically
motivated and gender-based violence persists.
III. The Officer’s
Decision
[7]
The
officer found that the documentary evidence submitted by Ms Govindasamy was of
a general nature, applicable to the population as a whole. The only groups specifically
targeted were young Tamil males. Overall, the situation in Sri Lanka is improving. Returnees to Sri Lanka from abroad are generally not targeted,
although Tamils from the north receive greater scrutiny. Usually, officials are
interested only in persons with an outstanding arrest warrant or ties to the
LTTE. In particular, returnees from Canada have not received negative
treatment.
[8]
The
officer noted that the situation for women in Sri Lanka is “not ideal” and “not
perfect.” Sexual and domestic violence are a problem, but the situation is
improving.
[9]
As
for extortion, the officer found that Ms Govindasamy was in the same situation
as the rest of the population. The officer acknowledged that women are often
targets of abductions, but Ms Govindasamy was at the same risk as the Sri
Lankan population as a whole. Further, kidnappings are declining.
[10]
Based
on this evidence, the officer concluded that Ms Govindasamy had not met her
burden of showing that she faced a risk recognized in either s 96 or s 97 of
the Immigration and Refugee Protection Act, SC 2001 c 27 (see Annex).
IV.
Was
the Officer’s Decision Unreasonable?
[11]
Ms
Govindasamy argues that the officer overlooked significant documentary evidence
that was relevant to her application. In particular, she points to the
following:
• persons
perceived to be LTTE sympathizers continue to be targeted for arbitrary
killings, disappearances, and detention;
• returnees
from abroad are sometimes held for questioning at the airport; and
• violence
against women is pervasive.
[12]
Ms
Govindasamy also notes that the officer failed to consider recent documentary
evidence that was available. In particular, the officer relied on a 2010 report
of the International Crisis Group (ICG), even though a 2011 report was
available. Further, the officer cited a 2006 Response to Information Request
(RIR) about the treatment of returnees from abroad, not more recent evidence.
[13]
I
am satisfied that the officer failed to respond adequately to the particular
allegations put forward in Ms Govindasamy’s submissions and the documentary
evidence that was before her. A PRRA officer must consider “the most recent
sources of information” (Hassaballa v Canada (Minister of
Citizenship and Immigration), 2007 FC 489, at para 33). In addition, an
officer must consider documentary evidence that contradicts his or her conclusion
(Cepeda-Gutierrez v Canada (Minister of Citizenship
and Immigration), [1998] FCJ No 1425 (FCTD)).
[14]
Here,
there were more recent reports that were relevant to the officer’s assessment.
Some of those were cited in Ms Govindasamy’s submissions. In addition, there
was a 2011 RIR that was issued several months before the officer’s decision.
That RIR indicated that failed asylum seekers from abroad are subject to
special questioning and sometimes detained for months on their return to Sri Lanka, especially when there are no family members to come to the person’s assistance.
[15]
In
my view, the officer failed to address and to respond adequately to the
evidence supporting Ms Govindasamy’s claim to be at risk on her return to Sri Lanka. Some of that evidence related to her personal situation, not the population as a
whole. The officer’s decision does not represent a defensible outcome based on
the applicable facts and law; therefore, it is unreasonable.
V. Conclusion and
Disposition
[16]
The
officer’s decision did not respond adequately to the evidence and allegations
put forward by Ms Govindasamy, and did not take account of the most recent,
publicly available documentary evidence. Accordingly, the officer’s decision
was unreasonable. I must, therefore, allow this application for judicial review
and order another officer to reassess Ms Govindasamy’s application. 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
another officer for a reassessment.
2.
No
question of general importance is stated.
"James W. O'Reilly"
Annex “A”
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Immigration
and Refugee Protection Act, SC 2001 c 27
Convention
refugee
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,
(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
(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.
Person
in need of protection
97.
(1) A person in need of protection is a person in Canada whose removal to
their country or countries of nationality or, if they do not have a country
of nationality, their country of former habitual residence, would subject
them personally
(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
(b) to a risk to their life or
to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or,
because of that risk, unwilling to avail themself of the protection of that
country,
(ii) the risk would be faced by
the person in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent
or incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by
the inability of that country to provide adequate health or medical care.
Person
in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by
the regulations as being in need of protection is also a person in need of
protection.
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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch. 27
Définition
de « réfugié »
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 :
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;
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.
Personne
à protéger
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a) soit au risque, s’il y a des
motifs sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie
ou au risque de traitements ou peines cruels et inusités dans le cas suivant
:
(i) elle ne peut ou, de ce
fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout
lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui
s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne
résulte pas de sanctions légitimes — sauf celles infligées au mépris des
normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne
résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
Personne
à protéger
(2) A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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