Date: 20090506
Docket: IMM-4214-08
Citation: 2009 FC 467
Ottawa, Ontario, May 6, 2009
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
THANARAJAN
SHANMUGALINGAM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Thanarajan Shanmugalingam seeks judicial review of a decision refusing
his application for a humanitarian and compassionate exemption from the
requirements of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. The H&C officer found
that although the applicant would be subjected personally to a risk to his life
or a risk to the security of his person if he were to return to Sri Lanka, he
did not face undue, undeserved or disproportionate hardship.
[2]
At the conclusion of the hearing of this application, I advised the
parties that I was of the view that the officer’s decision was unreasonable,
and that I would be allowing the application. These are my reasons for so
doing.
Background
[3]
The applicant is a male Tamil from the north of Sri Lanka. Many of his
relatives have come to Canada, and a number of them have sought and obtained
refugee protection. The applicant himself came to this country in 2000.
However, his claim for refugee protection was refused because of the Immigration
and Refugee Board’s finding that he was excluded from the refugee definition
under Article 1F(a) of the Refugee Convention, because of his membership in the
Liberation Tigers of Tamil Eelam or “LTTE”.
[4]
The Board accepted that the applicant’s involvement with the LTTE may
initially have been involuntary. There was no evidence before the Board with
respect to the applicant’s position or rank within the organization. Nor was
there any evidence that the applicant had personally committed any actions that
would amount to war crimes or crimes against humanity. Indeed, the only
evidence before the Board with respect to the applicant’s activities with the
LTTE was his testimony that he had been forced to work digging bunkers and
cooking.
[5]
The Board’s exclusion finding appears to have been based solely on the
fact that one of the applicant’s brothers had based his own earlier refugee
claim on the risk of persecution that he faced in Sri Lanka as a result of the
applicant’s membership in the LTTE. Given the Board’s finding that the LTTE
was an organization dedicated to a limited brutal purpose, the Board’s finding
of membership was sufficient to bring the applicant within the exclusion
provisions of the Convention.
[6]
The applicant then sought an H&C exemption under section 25 of the Immigration
and Refugee Protection Act. While the officer’s decision addresses various
considerations raised by the applicant in support of his application, including
the extent of his establishment in Canada and the best interests of children
affected by the refusal of the application, for the purposes of this
application, I need only address the officer’s treatment of the issue of risk.
[7]
In this regard, the H&C officer reviewed the documentary information
with respect to conditions within Sri Lanka for Tamils from the north and east
of the country. In this regard, the Board found that individuals who are
suspected of being affiliated with the LTTE are at risk of human rights abuses
at the hands of the Sri Lankan authorities. Considering this evidence in light
of the applicant’s personal circumstances, the H&C officer concluded that
the applicant “would be subjected personally to a risk to his life or a risk to
the security of the person if returned to Sri Lanka”.
[8]
The officer then went on to state that:
Although I
have found that the applicant does face a risk if returned to Sri Lanka, it is
one factor to be considered in an H&C assessment. Exclusion under Article
1F(a) is a serious and exceptional finding. I am not making an inadmissibility
assessment in this case; however, the applicant was determined to be a member
of the LTTE which is an organization that the Government of Canada has
designated as a terrorist organization. I have weighed all the evidence in
this case and find that the Article 1F(a) exclusion is a very serious and
strong factor that is not overcome by the applicant’s establishment in Canada.
[9]
After then reviewing the relevant provisions of IRPA, the officer
concluded that “[T]he applicant may face difficulties having to re-adapt to
life in Sri Lanka; however, I am not satisfied it is hardship that is unusual
and undeserved, or disproportionate”. Consequently, the H&C application was
refused.
Analysis
[10]
In light of the documentary evidence before the officer, the finding
that the applicant would be personally at risk of his life or to the security
of his person if he were to return to Sri Lanka was entirely reasonable.
[11]
However, after finding the applicant to be at risk, the officer then
went on to find that the Board’s Article 1F(a) finding was “a very serious and
strong factor that is not overcome by the applicant’s establishment in Canada”.
That finding may well have been reasonable, if the only basis for the
applicant’s H&C application had been his establishment in Canada. That was
not, however, the case.
[12]
Despite the clear finding of risk that had been made by the officer
earlier in the reasons, no consideration whatsoever appears to have been given
by the officer as to whether the risk to the applicant’s life or to the
security of his person in Sri Lanka outweighed the gravity of the Board’s
Article 1F(a) finding. This was simply perverse.
[13]
Moreover, it is impossible to reconcile the officer’s conclusion that
the applicant “may face difficulties having to re-adapt to life in Sri Lanka”
with the officer’s finding that the applicant’s life was at risk in his home
country. With all due respect, to characterize a risk to life, or a risk to
the security of the person, as ‘difficulties re-adapting’ was simply unreasonable.
[14]
A fair reading of the officer’s reasons suggests that the Board’s
Article 1F(a) finding effectively trumped all other considerations militating
in favour of a positive outcome with respect to the applicant’s H&C
application. Given that the whole purpose of section 25 of the Act is to
overcome findings, including exclusion findings, in appropriate cases, it was
an error to effectively treat the exclusion finding as determinative of the
applicant’s application.
[15]
Moreover, in weighing the significance of the exclusion finding, the
officer does not appear to have given any consideration to the nature of the
applicant’s activities with the LTTE, or the extent of his personal culpability
in that regard, in deciding whether the hardship that he faced in Sri Lanka was
unusual and undeserved, or disproportionate.
[16]
As a consequence, the officer’s reasoning lacks the
justification, transparency and intelligibility required of the decision-making
process. Moreover, the decision does not fall within the range of possible
acceptable outcomes that are defensible in light of the facts and the law: see Dunsmuir v. New Brunswick, 2008 SCC 9, at paragraph 47.
Conclusion
[17]
For these reasons, the application for judicial review is allowed.
Certification
[18]
Neither party has suggested a question for certification, and none
arises here.
JUDGMENT
THIS COURT ORDERS
AND ADJUDGES that:
1. This application for judicial review is allowed,
and the matter is remitted to a differently constituted panel for re-determination;
and
2. No serious
question of general importance is certified.
“Anne
Mactavish”
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