Date: 20111026
Docket: IMM-5028-10
Citation: 2011
FC 1227
Ottawa, Ontario, October 26, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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PATHMARUPAN THAMBIPILLAI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP &
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a decision of a
pre-removal risk assessment officer (the officer), dated July 2, 2010, wherein
the officer refused the applicant’s application for permanent residence from
within Canada on humanitarian and compassionate (H&C) grounds.
[2]
The applicant requests that the decision be set aside and the
claim remitted for redetermination by a different officer.
Background
[3]
Pathmarupan
Thambipillai (the applicant) is an ethnic Tamil citizen of Sri Lanka born on April 28, 1978.
[4]
The
applicant left Sri
Lanka in
May 2003 and claimed refugee protection in Canada. The Immigration and Refugee Board deemed
his refugee claim to be abandoned when the applicant did not submit his
Personal Information Form (PIF) within the required 28 day period. His
application to re-open his claim and the subsequent judicial review were both
dismissed.
[5]
The
applicant’s brother and sister’s refugee claims were allowed in 2002 and 2005
respectively.
[6]
In
March 2004, the applicant submitted an application for permanent residence on
H&C grounds pursuant to section 25 of the Act to Citizenship and
Immigration Canada (CIC). The applicant provided supplementary submissions to
CIC in December 2004, January 2005, March 2008, May 2008 and May 2010.
[7]
The
applicant purchased a taxi cab and the business derived from it in March 2010
to begin his own taxi company.
[8]
On
July 2, 2010, CIC refused the applicant’s application for permanent residence.
Officer’s Decision
[9]
The
officer refused the H&C application for the following reasons.
[10]
To
begin, the officer outlined the test for an H&C exemption under section 25
of the Act: that the applicant would face unusual, undeserved or
disproportionate hardship if required to apply for permanent residence from
outside Canada.
[11]
In
assessing hardship, the officer found that the majority of the documents
provided by the applicant pre-date the May 2009 defeat of the Liberation Tigers of Tamil Eelam (LTTE) by the
Sri Lankan government forces. The officer acknowledged a duty to consider the
most recent publicly available information and the officer found that this
information shows that the country conditions in Sri Lanka have changed
considerably since May 2009.
[12]
The
officer acknowledged the evidence that the applicant and his family originate
from the Jaffna area of Sri Lanka and were displaced in
1991 and 1995. The applicant and his siblings were forcibly recruited by the
LTTE and the applicant was detained by the Sri Lankan army.
[13]
The
officer noted that the country conditions in Sri Lanka are not
ideal. However, the officer found that the applicant’s profile, even as a young
Tamil male, would not currently place him at risk. He is not at risk of being
detained by the authorities as there is no arrest warrant for him and he has no
connection to the LTTE. The officer found that the applicant’s concern of being
extorted as a wealthy individual from the west was largely speculative.
[14]
The
officer also considered the applicant’s establishment in Canada. The officer
acknowledged that the applicant had worked in several jobs in Canada and had recently
purchased a taxi cab company and license. The officer further acknowledged the
applicant’s support from friends and family in the community. The officer noted
that the applicant is not married and resides alone but has a close
relationship with his brother. The officer found that the applicant’s sister
had not provided information.
[15]
The
officer determined that the hardship to the applicant of losing his taxi business
or the difficulty in leaving his friends and family did not meet the threshold
of unusual, undeserved or disproportionate hardship.
[16]
The
officer concluded that the applicant’s circumstances were not such that he
would experience the hardships required under section 25 of the Act for an
exemption to the requirement to apply for permanent residence outside of Canada.
Issues
[17]
The
issues are as follows:
1. What is the
appropriate standard of review?
2. Did the officer
breach the applicant’s right to procedural fairness?
3. Did the officer err
in assessing the risks of hardship to the applicant?
4. Did the officer err
in assessing the applicant’s establishment in Canada?
Applicant’s Written Submissions
[18]
The
applicant submits that the length of time that CIC took to process his
application – seven years – was unreasonable.
[19]
The
applicant submits that the officer erred in assessing the documentary evidence.
The officer was obligated to explain why he/she preferred contradictory
evidence to that which supported the applicant’s allegation of risk. The
applicant submits that the information that pre-dates May 2009 is still
relevant and credible. Further, the applicant submits that the post-May 2009
documentary evidence is mixed and too little time has passed to categorically
find that the situation has changed or stabilized. The evidence relied on by
the officer does not support a finding that there has been a durable change for
the better in Sri
Lanka
for Tamil citizens. Those of highest risk today are young male Jaffna Tamils - the
profile that the applicant fits.
[20]
The
applicant further submits that the officer was required to raise the issue of a
change in country conditions in Sri Lanka with the applicant and
provide the applicant with the opportunity to respond. Nothing in the
applicant’s submissions indicate that he was aware of the change in
circumstances and a failure to inform him of such was a breach of procedural
fairness.
[21]
Concerning
establishment, the applicant submits that the officer unreasonably faulted him
for purchasing a taxi cab company despite having unsecured immigration status. The
applicant submits that he did not know that his immigration status in Canada was tenuous.
[22]
Finally,
the applicant submits that the officer erred in fact by stating that his sister
did not provide any information when there was a letter from the applicant’s
sister dated May 10, 2010. This misstatement of the evidence demonstrates that
the officer failed to consider the applicant’s family in Canada in assessing
the H&C application.
Respondent’s Written Submissions
[23]
The
respondent submits that the officer did not breach the applicant’s right to procedural
fairness. The officer applied the appropriate test for assessing the H&C
application. The officer was under no duty to inform the applicant of a change
in country conditions. In fact, the officer was obligated to consult the most
recent publicly available country condition documents and the officer did not
rely on any documents that were not publicly available. Further, the applicant
bears the onus to establish sufficient H&C grounds to justify an exemption.
This onus does not shift to the officer and there was no duty to conduct an
interview with the applicant concerning a change in country conditions.
[24]
Further,
the respondent submits that the officer reasonably assessed the risks of hardship.
The officer objectively analyzed the recent country condition evidence. The
applicant’s evidence of past persecution was not sufficient to demonstrate
risks of hardship today. It is not open to the Court to reweigh the evidence.
[25]
Finally,
the respondent submits that the officer appropriately assessed the applicant’s
establishment in Canada. The officer considered
the applicant’s business acquisition but reasonably found that while it is
unfortunate that the applicant would be leaving his business behind, this
hardship does not amount to anything greater than the predictable costs
associated with leaving Canada. Likewise, the
applicant should not be rewarded for amassing time in Canada as a means of assisting
his H&C application.
[26]
The respondent
submits that the officer reasonably concluded that the applicant had not met
the threshold for establishing that he would face an unusual, underserved or
disproportionate risk if required to apply for permanent residence in Canada from Sri Lanka.
Analysis and Decision
[27]
Issue
1
What is the
appropriate standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paragraph 57).
[28]
Findings
of an officer deciding an H&C application involve determinations of mixed
fact and law and are generally afforded deference by this Court (see Hnatusko
v Canada (Minister of Citizenship and Immigration), 2010 FC 18 at
paragraphs 25 to 26). Any issues of procedural fairness involving a PRRA
officer, however, will be determined on the correctness standard (see Parshottam v
Canada (Minister of Citizenship and Immigration), 2008 FCA
355).
[29]
I
wish to deal first with Issue 3.
[30]
Issue 3
Did the
officer err in assessing the risks of hardship to the applicant?
Changes to a country’s conditions is a
factual not legal question and this Court is only permitted to intervene where
the officer’s decision on changed circumstances is unreasonable and not
supported by the evidence (see Yusuf v Canada (Minister of Employment and Immigration) (1995), 179 NR 11 (FCA) at
paragraph 2).
[31]
An officer
considering an H&C application need not refer to all of the documentary
evidence before him or her, provided the decision takes into account any
evidence that contradicts the conclusion (see Cepeda-Gutierrez v Canada
(Minister of Citizenship and Immigration) (1998), 157 FTR 35, [1998] FCJ No
1425 (FCTD)(QL) at paragraphs 14 to 17; Florea v Canada (Minister of
Employment and Immigration), [1993] FCJ No 598 (FCA)(QL)).
[32]
I have
reviewed the country documentation connected with this application and in
particular, I have reviewed documents referred to by the officer in the
decision under review.
[33]
The documents
referred to by the officer also contain the following statements referenced
below. In the tribunal record at page 1156, it is stated:
The military has been maintaining
extra-legal detention centres for an estimated 11,000-13,000 people suspected
of LTTE ties. These detained have had no access to lawyers, their families,
ICRC or any other protection agency, and it is unclear what is happening inside
the centres.
[34]
At
pages 1173 to 1174 of the tribunal record, the following excerpt from the
documentary evidence is found:
8.19 Comprehensive
information on the cordon and search operations between June and August 2009 is
available from the Report of the FCO information gathering visit to Colombo,
Sri Lanka 23-29 August 2009, published on 22 October 2009 (FCO October 2009
report). The report observed:
Most
sources said that the frequency of cordon and search operations had not reduced
significantly in recent months, though there were fewer large-scale operations
than in previous years. No information was available on numbers of arrests. In
general, young male Tamils originating from the north and east of the country
were most at risk of being detained following cordon and search operations,
with the above factors again increasing that risk. Those without employment or
‘legitimate’ purpose for being in Colombo were also likely to be seen as
suspicious.
And at page 1122 of the tribunal record, the
following is noted:
EVENTS
IN SRI LANKA FROM 28 JANUARY TO 18 FEBRUARY 2010
16
February The European Union has decided to suspend Sri Lanka’s preferential trade benefits because of concerns over the
country’s human rights record. The Government is facing increasing
international calls for an independent investigation into allegations of war
crimes committed in the final stages of the war between the security forces and
Tamil Tiger rebels last year.
[35]
At
page 1361 of the tribunal record, the documentary evidence reads:
In
theory, anyone was entitled to register to stay in Colombo, but some sources suggested that young Tamil men originally
from the north or east of the country could encounter difficulties and face
closer scrutiny. The presence of any of the ‘risk factors’ noted above would
also generate greater attention from the police. In general, registration would
be easier if people indicated that their stay in Colombo
was temporary.
And at page 1383 of the tribunal record, the
documentary evidence states:
3.17 The
representative of the Swiss Embassy in Colombo said there were cases where there seemed
to be a strong political motive; where media, human rights or political
activities were involved. But there often seemed to be a mixture of both
elements. Sometimes denouncement and personal revenge could also play a role.
As for Colombo, the Embassy knew only about a few cases
that were reported. The Swiss Asylum Section had the impression that detentions
resulting from regular checks and cordon operations were not always due to
investigations against terrorism, but also driven by the security forces’
desire to get money. Some inmates had told the Asylum Section that, for
whatever reason, the number of suspects in the cells remained the same.
And finally at page 1180 of the tribunal record,
the following is noted:
8.36 The
EU report of October 2009 further noted that:
International
reports indicate continual and well-documented allegations of widespread
torture and ill-treatment committed by State forces (police and military)
particularly in situations of detention. The UN Special Rapporteur on Torture
has expressed shock at the severity of the torture employed by the army, which
includes burning with soldering irons and suspension of detainees by their
thumbs. The UN Special Rapporteur on Extra-Judicial Killings has noted that the
majority of deaths as a result of torture at the hands of the police are not
caused by ‘rogue’ police officers but by ordinary officers taking part in an
established routine. …
[36]
The
officer made the following comments in the decision. At page 4 of the reasons,
the officer quotes from the documentary evidence (application record page 11):
There
is also a consensus that there have been no cordon and search operations since
the end of the conflict in May 2009.
And at page 8 of the decision (application
record page 15), the officer states:
The
information before does not indicate that the applicant, although clearly of
Tamil ethnicity, is the subject of an outstanding arrest or other warrant, or
that he would be singled out as having a connection with the LTTE. The
information before me also does not support that, given the current state of
the LTTE since the war, that the applicant would be targeted for recruitment by
the LTTE or the Sri Lanka Army. The applicant has indicated that he is in
possession of a National Identity Card for Sri Lanka.
The fears expressed by the applicant with regard to his being viewed as a
wealthy person returning from the west, and thereby subjecting him to threats
of extortion, appear to be largely speculative. The applicant’s stated concerns
with regard to his return to Sri
Lanka are unsupported.
[37]
As
pointed out earlier, the officer need not refer to every piece of documentary
evidence but the officer must refer to evidence that runs contrary to the
evidence used in the decision and address why the other evidence is preferred.
A comparison of the decision and the documentary evidence does not lead me to
believe that this was done in this case. This is a reviewable error.
[38]
As a
result, the application for judicial review must be allowed and the matter
referred to a different officer for redetermination.
[39]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
[40]
Because
of my finding on Issue 3, I need not deal with the other issues.
JUDGMENT
IT IS ORDERED that the application for judicial
review is allowed, the decision of the officer is set aside and the matter is
referred to a different officer for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration and Refugee Protection
Act, SC 2001, c 27
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25. (1) The Minister must, on request of a foreign
national in Canada who is inadmissible or who does not meet the requirements
of this Act, and may, on request of a foreign national outside Canada,
examine the circumstances concerning the foreign national and may grant the
foreign national permanent resident status or an exemption from any
applicable criteria or obligations of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to the foreign national, taking into account the best interests of a
child directly affected.
72.(1) Judicial review by the Federal
Court with respect to any matter — a decision, determination or order made, a
measure taken or a question raised — under this Act is commenced by making an
application for leave to the Court.
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.
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.
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25. (1) Le
ministre doit, sur demande d’un étranger se trouvant au Canada qui est
interdit de territoire ou qui ne se conforme pas à la présente loi, et peut,
sur demande d’un étranger se trouvant hors du Canada, étudier le cas de cet
étranger; il peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
considérations d’ordre humanitaire relatives à l’étranger le justifient,
compte tenu de l’intérêt supérieur de l’enfant directement touché.
72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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.
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 m enace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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