Date: 20091014
Docket: IMM-253-09
Citation: 2009 FC 998
Ottawa, Ontario, October 14, 2009
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
THOMAS
VINCENT CRUZE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision (the Decision) of a
Pre-Removal Risk Assessment Officer (the Officer) dated December 2, 2008,
wherein the Officer rejected the Applicant’s Pre-Removal Risk Assessment (PRRA)
application.
I. Background
[2]
The
Applicant is a 37 year old citizen of Sri Lanka. The Applicant entered Canada in September
2005 and made a refugee claim. His refugee claim was denied in September 2006
and this Court dismissed his judicial review of that claim in November 2007. He
submitted an application for a PRRA on May 20, 2008 and made submissions in
support of that application. The PRRA decision was denied on December 2, 2008. He
also made an application for permanent residence in Canada on
humanitarian and compassionate grounds (H & C grounds), which was denied.
The H & C application is the subject of a separate judicial review
proceeding before this Court, although with the agreement of counsel both
applications were argued together based on the same factual background. A
separate judgment will issue with respect to the H & C application.
[3]
The
Applicant’s PRRA was based on the alleged risk he would face as a homosexual
man returning to Sri Lanka because of his sexual orientation and because
of alleged threats made by his former partner’s family. The Officer found that
the Applicant had provided insufficient evidence that the Applicant is a
homosexual, that the family wished to harm him, and that the Applicant has a
viable Internal Flight Alternative (IFA) to Colombo. The PRRA
Officer concluded that there was insufficient evidence to show that the
Applicant faced more than a mere possibility of persecution in Sri Lanka and did not
find it was more likely than not that the Applicant faced a risk of death or of
cruel and unusual punishment or treatment, or a risk of torture in Sri Lanka.
[4]
The
Applicant states that he is a homosexual who was in a long-term secret
relationship with a friend from College, Milroy. When their families found out
about the relationship, Milroy’s family locked him in the house and later
Milroy committed suicide in a car crash. According to the Applicant, Milroy’s
family blamed him for the death of their son and has threatened his life. The
Applicant fled first to Japan and then to Canada. The
Applicant states there is no safe place for him in Sri Lanka as hatred
for homosexuals is prevalent all over the country and that his hometown is
close to Colombo and Kandy, two urban centers identified as possible
IFA’s.
[5]
At
his PRRA, the Applicant presented documents from Sri Lanka confirming
Milroy’s accident and death and letters of support from a Priest, Member of
Provincial Council and his friend, Sujeewa.
II. Standard
of Review
[6]
Prior
to the decision of the Supreme Court of Canada in Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, a PRRA decision was assessed on a standard of
reasonableness simpliciter (Figurado v. Canada (Solicitor General),
2005 FC 347, [2005] 4 F.C.R. 387 and Demirovic v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1284, [2005] F.C.J. No. 1560,
142 A.C.W.S. (3d) 831). It was also held that questions of fact were to be
reviewed on a standard of patent unreasonableness, questions of mixed fact and
law on a standard of reasonableness, and questions of law on a standard of
correctness (Kim v. Canada (Minister of Citizenship and Immigration),
2005 FC 437, 272 F.T.R. 62 at paragraph 19).
[7]
Following
Dunsmuir, above, the review of PRRA decisions should continue to be
subject to deference by the Court and are reviewable on the newly articulated
standard of reasonableness. As a result, this Court will only intervene to
review a PRRA officer's decision if it does not fall "within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law" (Dunsmuir, above, at paragraph 47). For a decision to be
reasonable there must be justification, transparency and intelligibility within
the decision making process.
III. Issues
[8]
The
application raises three issues, namely:
(a) Did
the Officer err in law in finding that the Applicant was not homosexual and was
not threatened by his ex-lover’s family by failing to properly consider the
Applicant’s supporting documentation?
(b) Did
the Officer err in law in the finding that the Applicant had an internal flight
alternative in Colombo or Kandy by ignoring and/or
misunderstanding the objective documentary evidence?
(c) Did
the Officer err in law in finding that homosexuals did not face persecution in Sri Lanka?
A.
Did the
Officer Err in Law in Finding That the Applicant Was Not Homosexual and Was Not
Threatened by His Ex-Lover’s Family by Failing to Properly Consider the
Applicant’s Supporting Documentation?
[9]
At
his refugee hearing, the Refugee Protection Division (RPD) stated they did not
believe that the Applicant was homosexual, that he had been in a relationship
with Milroy or that Milroy committed suicide, as there was no corroborative
evidence. In addition, the RPD found that the Applicant’s evidence was not
consistent and at times embellished and implausible. Subsequently the Applicant
obtained evidence that purports to adequately address the RPD’s credibility and
other concerns. This evidence was the post-mortem report of Milroy’s death and
letters from a Priest, Member of Provincial Council and his close friend
Sujeewa, all of which allegedly corroborated the fact that the Applicant was a homosexual
man who had a same sex relationship with Milroy and the fact that Milroy died
in a car accident.
[10]
After
reviewing the evidence, the Officer stated that the post-mortem material was
reliable evidence that Milroy died of a car accident, but the suggestion that
the accident was suicide was speculative. The Officer continued, stating that
while he considered the two letters and the affidavit, he gave them little
weight. The Officer noted that Sujeewa is the Applicant’s “best friend” and
therefore not disinterested in the outcome, the letter from the Councillor was
written at the Applicant’s brother’s request and restated much of the
Applicant’s claim, as did the letter from the Priest. The Officer stated that
this evidence was not sufficient to address the RPD’s credibility findings.
[11]
The
Applicant argues that the Officer’s rejection of the supporting evidence was
unreasonable. He cites Elezi v. Canada (Minister of
Citizenship and Immigration), 2008 FC 422, [2008] F.C.J. No. 562 for
the position that it is an error of law to discount evidence solely because it contradicts
prior conclusions. In Elezi v. Canada (Minister of
Citizenship and Immigration), above, Justice Trembley-Lamer found that it
had been unreasonable for the PRRA Officer in that case to accord little
probative value to the “new evidence” declarations as it discussed facts that
the Board had already rejected for lacking credibility.
[12]
In
this matter, the Officer reviewed the three statements and found that the
letter from his best friend Sujeewa provided no new evidence with respect to
what was before the RPD. It is also clear that the Officer determined that his
friend had a personal interest in the matter and as such accorded this evidence
little weight, which the Officer was entitled to do under the circumstances
(see Ferguson v. Canada (Minister of Citizenship and Immigration), 2008
FC 1067, [2008] F.C.J. No. 1308 at paragraph 27).
[13]
In
addition, the Officer reviewed the letter from the provincial councillor and
notes that the letter was produced at the request of the Applicant’s brother to
enable the Applicant to obtain his document to live in Canada. It is also
clear from a review of the letter that the councillor did not have first hand
knowledge of the Applicant nor does the letter directly refer to the sexual
orientation of the Applicant.
[14]
Finally,
the Officer reviewed the letter from the Priest and considered the statements
contained therein. Again, the letter is not a first hand account with respect
to this issue and relies upon statements made to the Priest by family members.
[15]
The
Officer accorded these statements little weight and concluded that there was
insufficient new evidence to overcome the finding of lack of credibility on the
part of the Applicant by the Board.
[16]
I
find that the Officer did not reject this evidence solely as a result of the
Boards prior determination (see Sanchez v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1336, [2008] F.C.J. No. 1673). Rather,
the Officer assessed whether the evidence was credible and concluded that it
was not. In Ferguson, above, Justice Zinn at paragraph 25:
Documentary evidence may also be found to
be unreliable because its author is not credible. Self-serving reports may fall
into this category. In either case, the trier of fact may assign little or no
weight to the evidence offered based on its reliability, and hold that the legal
standard has not been met.
[17]
When
as here, the fact asserted is critical to the PRRA application, it was open to
the Officer to require more evidence to satisfy the legal burden especially in
light of the findings of the Board. As Justice Noël noted in Zamanibakhsh v.
Canada (Minister of
Citizenship and Immigration), 2002 FCT 1137, [2002] F.C.J. No. 1525 at
paragraph 16:
Homosexuality is an integral part of a
human being. In order to prove such a state, the applicant must present factual
evidence that demonstrates such a way of being. The Applicant bears the onus of
proof, and the CRDD found that he did not satisfy them.
[18]
I
find that the conclusion reached by the Officer falls within the range of
reasonableness and that no error was made.
[19]
Given
my conclusion with respect to issue (a), there is no need to address issues (b)
and (c) as they are both premised upon a determination that the Officer’s
conclusion with respect to the Applicant’s sexual orientation was unreasonable.
[20]
Neither
party proposed a certified question and no question will be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“ D.
G. Near ”
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