Date: 20070605
Docket: IMM-5605-06
Citation: 2007 FC 591
Ottawa, Ontario, June 5,
2007
PRESENT: The Honourable
Mr. Justice Hughes
BETWEEN:
Ravindranath
Anton
Applicant
and
The
Minister of Citizenship and Immigration
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant is an adult male citizen of Sri Lanka currently residing in England
where be made an application to the Canadian High Commission for a permanent
resident visa in Canada as a member of a Convention refugee abroad class or as
a member of the Humanitarian – protected persons abroad designated class. By a
decision dated August 16, 2006 that application was refused. This decision is
the subject of the application for judicial review now before this Court.
[2]
I
will allow this application, the decision will be quashed and the matter
returned to the High Commission for redetermination by a different Officer.
[3]
The
applicant is a Tamil who resided in the northern part of Sri Lanka. He claims
to have been arrested, detained and beaten by army personnel. He claims that
they had killed his father. The applicant fled to Singapore, then
Africa, then to the United Kingdom where he sought refugee protection and was
refused. He then applied to Canada.
[4]
The
circumstances of this case are somewhat similar to those considered earlier
this year by this Court in Sutharsan v. Canada (MCI), 2007 FC 226. In
that case this Court found that the Officer had applied the wrong test in law
in determining what onus was to be borne by the applicant. The Court concluded
that the proper test to be applied was whether the applicant had established
that there was a reasonable chance or good grounds to believe that he would
suffer persecution. That is not the case in the present circumstance since
here the Officer stated that he was satisfied that there was no more than a
mere possibility that the applicant was at risk and that protection from the
authorities could be expected.
[5]
The
matter that is troubling in this case, is that the decision given here is, in
its critical wording, virtually identical to that of Sutharsan. This
leads this Court to believe that the Officer failed to give proper attention to
the circumstances of this individual case and simply proceeded, by rote, or use
of pre-written paragraphs from a computer data bank, to process a decision
rather than give the matter proper individual attention.
[6]
Here
is paragraph 10 from the Sutharsan decision in this Court where the
substantive portion of the Officer’s decision there was recited:
[10]
In the letter conveying the decision under
review, the Officer wrote:
. .
.
You said
that you were arrested by the police but not that you were ever charged with
any offence. Although you said you were ill-treated, you did not mention
that you reported this to the authorities, nor sought assistance from
organizations such as the Anti-Harassment Committee or the National Human
Rights Commission. Given the fact that you were never charged with
involvement and that you were released, this would appear to indicate that the
Sri Lankan authorities were satisfied that you did not have any involvement
with the LTTE. I am therefore not satisfied that you have reason to fear
the authorities would have any interest in you.
The
cease-fire between the LTTE and the government remains in place and, although
there have been instances where individuals were targeted by the LTTE (for
instance the assassination of the Foreign Minister Kadirgamar in August 2005),
these were politically motivated and the civilian population is not reported as
being targeted. Your situation, were you to return to Sri Lanka, would be
no more hazardous than that of any other person in that country.
Organizations such as the Sri Lanka Monitoring Mission and Amnesty
International, while concerned about the peace situation in Sri Lanka, have
acknowledged that the Government of Sri Lanka has taken
steps to restore the rule of law.
In the
absence of any reason why the Sri Lankan authorities would have any interest in
you, and given the decision of the LTTE to comply with the terms of the current
cease fire, and given the relative stability in Sri Lanka at this time, I am
not satisfied that you have a well-founded fear of persecution.
…
[emphasis
added]
[7]
To
compare, this is the substantive part of the Officer’s decision in the present
case:
You said you were detained by
the army but confirmed that you were released without any apparent charge being
made against you. Although you said you were ill-treated, I note that you did
not report this to authorities, not did you seek assistance from organizations
such as the Anti-Harassment Committee or the National Human Rights Commission.
Given the fact that you were never charged with any offence and that you were
released after your uncle was said to have paid a bribe, this would appear to
indicate that the Sri Lankan authorities had no serious interest in you. After
an incident that serious as the bombings at the Colombo airport in July 2001, it would appear
likely that the Sri Lankan authorities would have been diligent in seeking out,
detaining, and prosecuting those they believed were involved in the attack.
The fact that they released you after a few days would appear to indicate that
they did not believe you to have any connection to the airport attack and were
therefore of no interest to them. I am therefore not satisfied that you have
reason to fear the authorities would have any interest in you. You have also
stated that the LTTE would wish to murder you for disclosing information about
your former friend to the authorities. Given that you said you met your friend
accidentally in Colombo and had spent so little time
together, such a threat from the LTTE does not appear credible.
The cease-fire between the
LTTE and the government remains in place and, although there have been
instances where individuals were targeted by the LTTE (for instance the
assassination of the Foreign Minister Kadirgamar in August 2005), these were
politically motivated and the civilian population is not reported as being
targeted. Your situation, were you to return to Sri Lanka, would be more hazardous than
that of any other person in the country. Organizations such as the Sri Lanka
Monitoring Mission and Amnesty International, while concerned about the peace
situation in Sri
Lanka,
have acknowledged that the Government of Sri Lanka has taken steps to restore the rule of
law. I am therefore satisfied that there is no more than a mere possibility
that you are at risk from the LTTE and, if you were, you could reasonably
expect protection from the authorities.
In the absence of any reason
why Sri Lankan authorities would have any interests in you, and given the
decision of the LTTE to comply with the terms of the current ceasefire, and
given the relative stability in Sri Lanka at this time, I am not satisfied that
you have a well-founded fear of persecution.
Therefore, you do not meet the
requirements of this paragraph.
[8]
An
examination of the CAIPS notes made by the Officer indicates that he instructed
someone identified only as MCH to include the above paragraphs in “Refusal Ltr.”
[9]
The
first of there paragraphs above recites the Officer’s understanding of the
factual circumstances pertaining to this applicant. The second paragraph, save
for the addition of the last sentence, which addition rescues the decision from
the error of law made in Sutharsan, is identical to the wording used in Sutharsan.
However, the Tribunal Record in this present case provides no basis upon which
the statements attributed to the Sri Lanka Monitoring Mission could have been
based. As for the statement that Amnesty International acknowledged that the
Government of Sri Lanka has taken steps to restore the rule of law, the
Tribunal Record shows that the actual statement made by Amnesty International
was as summarized by that organization as follows:
The ceasefire between the
government and the Liberation Tigers of Tamil Eelam (LTTE) remained in place
despite numerous violations and a deteriorating relationship between two
parties. Escalating political to the north by the end of the year, while a
nationwide state of emergency was in pace for much of 2005. Hundreds of
thousands of people remained displaced people’s camps. There were threats to
reintroduce the death penalty and numerous reports of torture in police
custody.
[10]
It
is difficult; if not impossible to consider that the Officer in fact reviewed
the Amnesty International report and came to the conclusion that he did. The
whole of the report strongly supports the applicant’s conclusions.
[11]
Further,
the CAIPS notes made by the Officer question why it was the applicant did not
make a refugee claim when he fled to Singapore. The Officer
overlooked or perhaps never knew that Singapore was not a signatory to
the Convention and no such claim could be made there.
[12]
The
Record clearly indicates that the Officer failed to give proper attention to
this file. He chose to copy from another file where a decision was made in a
similar circumstance. The Officer failed to properly considering whether the
present applicant’s file contained evidence to support the conclusion and
findings ostensibly made by the Officer.
[13]
I
find that the purported findings of fact as indicated above are patently
unreasonable having regard to the Tribunal Record in this case. The decision
must be quashed and the matter returned for determination by a different
Officer who is to review the record carefully before making a decision.
[14]
Neither
party requested a certified question.
JUDGMENT
For
the Reasons given;
THE COURT ADJUGES THAT:
1.
The
application is allowed;
2.
The
matter is returned to the High Commission for redetermination by a different
Officer;
3.
There
is no question for certification;
4.
No
Order as to costs.
"Roger
T. Hughes"
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