Date:
20121017
Docket:
IMM-863-12
Citation:
2012 FC 1195
Ottawa, Ontario,
this 17th day of October 2012
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
PATHMANATHAN NAGAMUTHU
Applicant
and
THE MINISTER OF
CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
On
January 27, 2012, Pathmanathan Nagamuthu (the “applicant”), a citizen of Sri Lanka, filed the present application
for judicial review of the decision of L. Ly, an immigration officer with Citizenship
and Immigration Canada (the “officer”), pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”). The officer
denied the applicant’s permanent residency application on humanitarian and
compassionate grounds in docket IMM-862-12 and also denied his pre-removal risk
assessment (“PRRA”) in docket IMM-863-12 on the same day.
[2]
The
applicant was born in Sri Lanka in 1952. He is a Tamil from the northern region
of the country. The applicant arrived in Canada on March 12, 1995. A removal
order was issued against the applicant on March 20, 1995.
[3]
The
applicant claimed refugee status, but his claim was denied on September 23,
1996 and leave for judicial review was denied on February 19, 1997.
[4]
The
applicant’s application for permanent residence from within Canada based on humanitarian and compassionate grounds was received by Citizenship and Immigration
Canada on September 29, 2005.
[5]
The
applicant claims to be established in Canada, having a job, going to temple and
speaking English, while he sends money to his family back in Sri Lanka. The applicant contends that it is in the best interest of his children that he remain in Canada, for he sends his two children money back in Sri Lanka in order for them to pursue their
studies. His children are in their twenties. His wife also remains in Sri Lanka.
[6]
Due
to the unfavorable conditions in Sri Lanka, if forced to return, the applicant
claims that he would be at risk, being believed to be a supporter of the
Liberation Tigers of Tamil Eelam (“LTTE”). Since the end of the war, his family
has had problems with the Karuna, a paramilitary group. He also claims to be at
risk in Sri Lanka for having filed a failed refugee claim here in Canada. He also fears the Sri Lankan authorities and the paramilitary, being elderly and
thereby vulnerable to persecution.
[7]
In
November 2010, the applicant filed his PRRA, which was refused by the officer
on December 2, 2011, as was his application for permanent residency based on
humanitarian and compassionate grounds. While the decisions are dated December
2, 2011, they were only served on the applicant on January 17, 2012.
[8]
On
December 14, 2011, applicant’s counsel submitted additional documentary
evidence on the country conditions in Sri Lanka. By correspondence dated the
same day, the applicant was sent a call-in-notice informing him that a decision
had been made and he had to attend an interview on January 17, 2012. At the
January 2012 interview, the applicant was told that both of his applications
were denied.
* * * * * * * *
[9]
The
issues raised by the present applications for judicial review can be summarized
as follows:
i.
Did
the officer err in law in her PRRA assessment, failing to apply the correct
legal standard?
ii.
Did
the officer err in law in her PRRA assessment, failing to consider the
cumulative persecution faced by the applicant?
iii.
Did
the PRRA officer err by failing to conduct an analysis under paragraph 97(1)(a)
of the Act?
iv.
Did
the officer fail to provide sufficient reasons in her decision to reject the
applicant’s application for permanent residency?
v.
Did the officer err,
making factual determinations in a perverse or capricious manner, without
regard to the evidence before her?
* * * * * * * *
I. Did the
officer err in law in her PRRA assessment, failing to apply the correct legal
standard?
Applicant’s
arguments
[10]
The
applicant contends that the officer failed to apply the correct legal standard
in her PRRA assessment. The applicant argues that he did not have the burden of
proving based on a balance of probabilities that he would face persecution,
contrary to the officer’s assertion. The applicant submits that the officer had
to determine whether the applicant would face more than a mere possibility of
persecution pursuant to Adjei v. Canada (Minister of Employment and
Immigration), [1989] 2 F.C. 680 [Adjei]; Chan v. Canada (Minister
of Employment and Immigration), [1995] 3 S.C.R. 593 [Chan], and Ponniah
v. Canada (Minister of Employment and Immigration) (1991), 132 N.R. 32
(F.C.A.). Rather, the officer used shifting burdens of proof in different parts
of her decision.
Respondent’s
arguments
[11]
The
respondent asserts that the burden of proof is that of a balance of
probabilities, the applicant having to prove the existence of a subjective fear
which is objectively well-founded based on a balance of probabilities, as set
out in Chan, above. Then, the decision-maker must consider whether the
applicant met his burden of proof, specifically, whether there is a serious
possibility of risk or persecution. The respondent argues that a reading of the
officer’s PRRA decision indicates that she applied the proper test. The
respondent submits that when the officer states that “on a balance of
probabilities” the applicant did not prove he was an LTTE supporter, she is
simply making findings of fact and not setting out the applicable legal test.
Thereby, the respondent asserts that the officer cannot be faulted for
addressing each of the allegations made by the applicant in his PRRA.
Analysis
[12]
In
my opinion, the officer did not apply an incorrect legal standard. The
respondent correctly summarized the situation: the officer did not fail to
apply the proper legal test in evaluating the applicant’s PRRA application.
Rather, the burden of proof rested on the applicant to establish that he faced
a serious possibility of persecution (Adjei, above at para 5; Chan,
above at para 120; Li v. Canada (Minister of Citizenship and Immigration),
[2005] 3 F.C.R. 239 (F.C.A.) at para 29 [Li]). The officer clearly
applied the correct legal test, concluding that:
Ainsi, à la lumière de l’ensemble du dossier, je considère
que le demandeur ne s’est pas déchargé du fardeau de sa preuve qu’il court un
des risques prévus aux articles 96 et 97 de la Loi advenant un retour au Sri
Lanka. Le demandeur n’a pas démontré qu’il y aurait plus qu’une simple
possibilité qu’il soit persécuté au Sri Lanka ni qu’il a des motifs sérieux
de croire qu’il serait personnellement exposé au risque d’être soumis à la
torture, à une menace à sa vie ou au risque de traitements ou de peine cruels
et inusités.
[Emphasis added.]
[13]
The
references made by the officer to a balance of probabilities relate to her
assessment of the evidence adduced by the applicant and not her identification
of the legal test the applicant had to meet. The officer did not err in law.
II. Did the
officer err in law in her PRRA assessment, failing to consider the cumulative
persecution faced by the applicant?
Applicant’s
argument
[14]
The
applicant goes on to argue that the officer erred in her PRRA assessment,
failing to consider that the individual incidents of discrimination considered
cumulatively amount to persecution. In her decision based on humanitarian and
compassionate grounds, the officer made numerous findings as to risks the
applicant may face upon his return, such as having to register with the police,
face questioning or proceed through security checkpoints. These findings are
not mentioned in the officer’s PRRA assessment. However, the applicant asserts
that these findings should have been included and that the officer should have
determined whether they cumulatively amounted to persecution, as the
documentary evidence indicated discriminatory treatment of Tamils from the
north.
[15]
The
applicant submits that since the officer erred in her PRRA assessment, she also
did so in her decision based on humanitarian and compassionate grounds.
Thereby, the applicant argues that both applications for judicial review should
be allowed.
Respondent’s
arguments
[16]
The
respondent argues that while the applicant claims the officer failed to assess
the incidents of discrimination cumulatively, the officer clearly stated in her
decision based on humanitarian and compassionate grounds that she considered
all of the factors individually and cumulatively, addressing each risk and fear
raised by the applicant. The respondent submits that the officer then concluded
that cumulatively, these factors and the evidence did not indicate that he
would face disproportionate hardship or anything other than the generalized
risks faced by the rest of the Sri Lankan population.
[17]
The
respondent asserts that the officer explained why cumulatively there was no
persecution: the applicant was considered not to be credible by the Immigration
and Refugee Board in his refugee claim based on the same allegations of
persecution.
[18]
Furthermore,
the respondent argues that the present case can be distinguished from Divakaran
v. Minister of Citizenship and Immigration, 2011 FC 633 [Divakaran],
which is relied on by the applicant: here, the officer made no positive
findings as to the alleged risks, finding there was little reason to believe
the applicant would be detained or harassed.
Analysis
[19]
The
cases relied on by the applicant as to the notion of cumulative persecution can
be distinguished from the case at hand. While it has been recognized that
multiple incidents of discrimination can constitute persecution pursuant to
section 96 of the Act (see Ampong v. Minister of Citizenship and Immigration,
2010 FC 35 at para 42), there are no such recognized incidents of
discrimination in the present case. Unlike in Retnem and Rajkumaar v.
Minister of Employment and Immigration (1991), 132 N.R. 53 (F.C.A.) [Retnem],
the applicant did not suffer any previous or subsequent harassment and there is
no evidence that he would likely endure such treatment. Therefore, while a
failure to address the cumulative nature of persecution has been considered an
error of law (see Retnem, above), in the case at hand there were no multiple
incidents of harassment that the officer had to consider: cumulative
persecution was therefore not an issue.
[20]
In
Divakaran, above Justice John O’Keefe did recognize that an officer’s
failure to consider cumulative persecution in a PRRA application amounted to an
error in law. However, in Divakaran, the officer had concluded in the
applicant’s application based on humanitarian and compassionate grounds that
the applicant “may have to register with police and may be questioned by state
security agencies if he wishes to reside in Colombo, or, if he resides in
Jaffna, the applicant might be required to proceed through security checkpoints
and register with the police” (at para 25). These findings were not mentioned
in the officer’s PRRA decision rendered the same day and thereby, this Court
held that the officer had failed to consider whether these discriminatory acts
cumulatively amounted to more than a mere possibility of persecution (Divakaran,
above at para 26).
[21]
However,
in the present case, the officer made no such findings of fact as to possible
discriminatory treatment the applicant may face upon returning to Sri Lanka. The officer concluded that there was insufficient evidence that the applicant
would face any of the alleged mistreatment, the documentary evidence not being
indicative of treatment faced by individuals similarly situated. Thus,
considering there was no evidence that the applicant would be subject to
discriminatory treatment, the officer had no obligation to consider whether
multiple incidents of discrimination would amount to persecution.
III. Did the PRRA
officer err by failing to conduct an analysis under paragraph 97(1)(a)
of the Act?
[22]
The
applicant argues that the PRRA officer erred by failing to conduct an analysis
under paragraph 97(1)(a). The applicant submits that he faces the
risk of torture by the state or agents of the state upon return to Sri Lanka, including the Karuna group and the Eelam People’s Democratic Party, because
those groups would believe he was a supporter of the LTTE.
[23]
In
the decision, the officer analyzed the risk that paramilitary groups pose to
the applicant. The officer found that the applicant had not demonstrated on a
balance of probabilities that he would be suspected upon return to Sri Lanka of being a sympathizer of the LTTE.
[24]
The
officer also analyzed whether paramilitary groups or the state authorities pose
a risk to the applicant for other reasons. The officer found that the applicant
had not demonstrated he is a person whose profile would be of interest to the
paramilitary groups or the state authorities.
[25]
The
officer concluded the analysis with a boiler-plate statement regarding how the
applicant has failed to prove he is subject to any of the risks provided for in
sections 96 and 97 of the Act. The officer did not analyze whether the
applicant met the criteria for paragraph 97(1)(a) specifically.
[26]
Paragraph
97(1)(a) requires an applicant to prove it is more likely than not he or
she will personally be subjected to a danger of torture upon return to their
country of nationality (Li, above at para 29).
[27]
The
applicant alleges he is facing the risk of torture in Sri Lanka due to being perceived as an LTTE sympathizer, but the officer found the applicant would
not be suspected of being associated with the LTTE. I do not believe
that in this context it was incumbent on the officer to undertake a paragraph 97(1)(a)
analysis. Therefore, I disagree with the applicant that the PRRA officer erred
by failing to conduct an analysis under paragraph 97(1)(a).
IV. Did the
officer fail to provide sufficient reasons in her decision to reject the
applicant’s application for permanent residency?
[28]
The
applicant argues that the officer’s reasons are inadequate. The applicant
contends that while the officer concludes that individually, the factors raised
by the applicant’s application do not amount to unusual, undeserved or
disproportionate hardship, she does not explain why collectively these factors
do not meet the required threshold of hardship, merely stating that
collectively they are insufficient. I do not agree.
[29]
The
reasons provided by the officer are sufficient and this Court’s intervention is
not warranted on this basis. In both decisions, the officer explained why she
rejected the applicant’s applications: she addressed each of the factors raised
by the applicant. The officer considered each factor, but concluded that there
was a lack of evidence to establish that the applicant would suffer unusual,
underserved or disproportionate hardship. Therefore, the reasons given by the
officer are sufficient: they enable the applicant to understand why his
application was rejected.
[30]
In
this case, it is clear that the officer did not merely summarize the factors,
but weighed each of them based on the evidence before her. While the applicant
may disagree with the officer’s weighing of the evidence, her reasons are clear
and this Court cannot intervene on this basis.
V. Did the
officer err, making factual determinations in a perverse or capricious manner,
without regard to the evidence before her?
[31]
The
officer’s assessment of the evidence was reasonable and the applicant has
failed to establish that the officer ignored the evidence before her. While the
officer did not specifically address the evidence of the economic conditions in
Sri Lanka, this alone does not render the decision unreasonable. Rather, the
officer considered there was insufficient evidence as to the specific economic
consequences the applicant’s return to Sri Lanka would have on him and his
family; there was no evidence to support the applicant’s allegations. Moreover,
as explained by the respondent, the applicant did not explain why he would be
unable to find work or start up a new business, based on his experience.
[32]
Furthermore,
the officer did not ignore the evidence outlining the difficulties encountered
by Tamils, failed refugee claimants or individuals without National
Identification Cards. The officer noted these facts outlined in the documentary
evidence, but concluded that the applicant would face a generalized risk. The
documentary evidence indicates that those likely subject to scrutiny by the Sri
Lankan authorities are returning citizens with outstanding warrants, criminal
records or known associations to the LTTE, or without identification. These
individuals will however not necessarily be arrested and no Sri Lankan without
a National Identification Card has been arrested since 2009 according to the
evidence relied on by the applicant. Moreover, there is no evidence that failed
refugee claimants have had any problems upon their return once they have
successfully entered the country.
[33]
Therefore,
the officer clearly did not ignore the evidence identified by the applicant.
Rather, having evaluated the documentary evidence, she concluded that there was
no evidence that the applicant would specifically be at risk or face unusual
and undeserved or disproportionate hardship. Considerable deference is owed to
the officer’s factual determinations, including her weighing of the evidence (Yousef
v. Minister of Citizenship and Immigration, 2006 FC 864, 296 F.T.R. 182 at
para 19; Augusto v. Solicitor General, 2005 FC 673 at para 9; Raza v.
Minister of Citizenship and Immigration, 2006 FC 1385, 304 F.T.R. 46 at
para 10). The officer’s assessment of the evidence was reasonable, falling
within the range of possible, acceptable outcomes which are justifiable in fact
and in law (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at para 47).
* * *
* * * * *
[34]
Therefore,
for the above-mentioned reasons, the application for judicial review in each
case, namely IMM-862-12 and IMM-863-12, is dismissed.
[35]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for
judicial review of the decision of L. Ly, an immigration officer with
Citizenship and Immigration Canada, rendered on December 2, 2011, in which the
officer denied the applicant’s pre-removal risk assessment, is dismissed.
“Yvon
Pinard”
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