Date: 20071119
Docket: IMM-4883-06
Citation: 2007 FC 1208
BETWEEN:
SENTHURAN NAGARATNAM
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing of an application for judicial review of a decision
of a Designated Immigration Officer (the “Officer”) at the Canadian High
Commission in London, England wherein the Officer determined the Applicant not
to be entitled to a permanent resident visa in Canada as a member of the
Convention refugees abroad class or as a member of the Humanitarian-protected
persons abroad designated class. The decision under review is dated the 18th
of August, 2006.
BACKGROUND
[2]
The
Applicant is a thirty-two (32) year old Tamil male citizen of Sri Lanka from the
north of that country. He fled Sri Lanka to the United Kingdom in 2001. He
attests that, in October, 1995, he was displaced from his home in the north of Sri Lanka by fighting
and moved to Vanni, in an area controlled by the Tamil Tigers (the “Tigers”).
The Tigers attempted to recruit him. To avoid the recruitment attempts, the
Applicant fled to a Sri Lankan army controlled area. He was arrested by the
army, beaten and accused of being a spy for the Tigers.
[3]
The
Applicant returned to the Tiger controlled area that he had left where he was
forced to work for the Tigers from December, 1999 to June, 2000 digging bunkers
and putting up notices. Once again, the Tigers attempted to recruit him. Once
again, he fled.
[4]
The
Applicant was arrested at an army checkpoint and was detained for six months.
During the time he was detained, he was beaten, burned with cigarettes, hung
upside down and beaten and forced to dig bunkers. He was able to escape from
his army captors while being transported with two others to dig bunkers. In
the course of the transport, there was an explosion and, in the ensuing
confusion, he made good his escape.
[5]
The
Applicant fled to Columbo, where he remained in hiding until he was able to
depart for the United Kingdom.
[6]
The
Applicant made an unsuccessful claim for asylum in the United Kingdom.
[7]
The
Applicant was sponsored to come to Canada by family members in Canada as a member
of the Convention refugees abroad class or as a member of the Humanitarian-protected
persons abroad designated class. He was interviewed by the Officer. The
decision under review followed.
THE LEGISLATIVE SCHEME
[8]
The
definition of those who are Convention refugees is set out in section 96 of the
Immigration and Refugee Protection Act. That section reads as follows:
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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,
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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 :
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(a) is outside each of
their countries of nationality and is unable or, by reason of that fear,
unwilling to avail themselves of the protection of each of those countries;
or
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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;
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(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.
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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.
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[9]
Section
145 of the Immigration and Refugee Protection Regulationsdefines
those who are members of the Convention refugees abroad class. It reads as
follows:
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145. A
foreign national is a Convention refugee abroad and a member of the
Convention refugees abroad class if the foreign national has been determined,
outside Canada, by an officer to be a Convention
refugee.
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145. Est un réfugié au sens de la Convention outre-frontières et appartient à
la catégorie des réfugiés au sens de cette convention l’étranger à qui un
agent a reconnu la qualité de réfugié alors qu’il se trouvait hors du Canada.
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[10]
Section
147 of the Immigration and Refugee Protection Regulations defines those
who are members of the country of asylum class which is a
humanitarian-protected persons abroad class. It reads as follows:
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147. A
foreign national is a member of the country of asylum class if they have been
determined by an officer to be in need of resettlement because
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147. Appartient à la catégorie de personnes de pays d’accueil l’étranger
considéré par un agent comme ayant besoin de se réinstaller en raison des
circonstances suivantes :
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(a) they are outside
all of their countries of nationality and habitual residence; and
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a) il se trouve hors de tout pays dont il a la nationalité
ou dans lequel il avait sa résidence habituelle;
|
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(b) they have been,
and continue to be, seriously and personally affected by civil war, armed
conflict or massive violation of human rights in each of those countries
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b) une guerre civile, un conflit armé ou une violation
massive des droits de la personne dans chacun des pays en cause ont eu et
continuent d’avoir des conséquences graves et personnelles pour lui.
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[11]
The
opening words of subsection 139 (1) of the Immigration and Refugee Protection
Regulations, and paragraph (e) of that subsection, read as follows:
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139. (1) A permanent resident visa
shall be issued to a foreign national in need of refugee protection, and
their accompanying family members, if following an examination it is
established that
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139. (1) Un visa de
résident permanent est délivré à l’étranger qui a besoin de protection et aux
membres de sa famille qui l’accompagnent si, à l’issue d’un contrôle, les
éléments suivants sont établis
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…
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…
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(e)
the foreign national is a member of one of the classes prescribed by this
Division;
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e) il fait
partie d’une catégorie établie dans la présente section;
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…
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…
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The Convention refugees abroad class and the country
of asylum class are classes prescribed by the same Division of the Regulations
of which subsection 139(1) is a part. By virtue of subsection 146(1) of the Regulations,
the country of asylum class is a humanitarian-protected persons abroad
designated class.
THE DECISION UNDER REVIEW
[12]
The
substance of the decision under review is quite brief. It consists of the
following two paragraphs:
You have said that you fear to return to Sri
Lanka because you will be persecuted and prosecuted both by the Sri Lankan Army
and the LTTE as well as forces and individuals you described as behind or
working with the government. You said you were arrested by the army and
detained for six months, but not that you were ever formally charged with any
offence. Although you said you were ill-treated, I note that you did not
report this to the authorities, nor did you seek assistance from organizations
such as the Anti-Harassment Committee or the National Human Rights Commission.
You said that you had also worked for the LTTE for approximately one year and,
although you departed the area of their control without their permission, it
appears that you were able to do so with relative ease. Likewise, the fact
that you were able to escape from the army during what apparently was perceived
as an attack by the LTTE appears to indicate that the army did not regard you
as a serious threat; if the army had genuinely believed you to be a member of
the LTTE, it does not appear credible that they would not have kept you under
more restricted custody or that you could have escaped from them during what
they perceived to be an attack by the LTTE. Given the fact that you were never
charged with any offence, this would appear to indicate that the Sri Lankan
authorities did not feel that whatever involvement you had with the LTTE was
serious enough for them to have any continued interest in you. Likewise it
appears that the LTTE did not regard your level of involvement with them as
warranting forcible detention or other restrictions on your movement. I am
therefore not satisfied that you have reason to fear the authorities or the
Army or the LTTE 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 appear to 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. 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 reasonable expect protection
from the authorities.
References in these reasons
to the “Tamil Tigers”, the “Tigers” and the “LTTE” are all references to the
Liberation Tigers of Tamil Elam.
THE ISSUES
[13]
Counsel
for the Applicant urged that the Officer erred in three respects as follows: first,
by failing to give consideration to the “compelling grounds” exception set out in
subsection 108 (4) of the Immigration and Refugee Protection Act; secondly,
by drawing patently unreasonable inferences from the Applicant’s story of his
treatment in the north of Sri Lanka at the hands of the Tigers and the Sri Lankan
Army; and thirdly, by ignoring evidence before him regarding the risk faced by
young Tamil males from the north of Sri Lanka, such as the Applicant, who have
endured experiences such as those of the Applicant.
ANALYSIS
a)
Compelling Grounds
[14]
Subsection
108 (1) of the Immigration and Refugee Protection Act, and paragraph (e)
of that subsection, provide that a claim for Convention refugee protection
shall be rejected, and a claimant found not to be a Convention refugee, if the
reasons for which the person sought protection have ceased to exist.
Subsection 108(4) provides an exception to the foregoing. That subsection
reads as follows:
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(4) Paragraph (1)(e) does not apply to a person
who establishes that there are compelling reasons arising out of previous
persecution, torture, treatment or punishment for refusing to avail
themselves of the protection of the country which they left, or outside of
which they remained, due to such previous persecution, torture, treatment or punishment.
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(4) L’alinéa (1)e) ne s’applique pas si le
demandeur prouve qu’il y a des raisons impérieuses, tenant à des
persécutions, à la torture ou à des traitements ou peines antérieurs, de
refuser de se réclamer de la protection du pays qu’il a quitté ou hors duquel
il est demeuré.
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[15]
The
Officer makes no finding whatsoever with regard to the credibility of the
Applicant’s tale of his treatment at the hands of the Tigers and, more
importantly, at the hands of the Sri Lankan Army. Further, the Officer makes
no determination as to whether that treatment amounted to persecution or
torture or similar treatment or punishment. On the facts of this matter,
particularly the Applicant’s evidence of his treatment, I regard this omission
as an implicit acceptance or finding that the Applicant was mistreated by the
Tigers and was persecuted, tortured or suffered similar treatment or punishment
at the hands of the Sri Lankan army.
[16]
In Yamba
v. Canada (Minister of
Citizenship and Immigration), Justice Robertson, for
the Court, wrote:
In summary, in every case in which the Refugee
Division concludes that a claimant has suffered past persecution, but there has
been a change of country conditions under paragraph 2(2)(e), the Refugee
Division is obligated under subsection 2(3) to consider whether the evidence
presented establishes that there are “compelling reasons” as contemplated by
that subsection. This obligation arises whether or not the claimant expressly
invokes subsection 2(3). That being said the evidentiary burden remains on the
claimant to adduce the evidence necessary to establish that he or she is
entitled to the benefit of that subsection.
The references in the above quotation to the
“Refugee Division” are to the predecessor to the Refugee Protection Division
established under the Immigration and Refugee Protection Act. I am
satisfied that they apply equally to an officer such as the Officer who took
the decision here under review. Further, the references to paragraph 2(2)(e)
and subsection 2(3) are to provisions of the predecessor to the Immigration
and Refugee Protection Act which are for all intents and purposes identical
to paragraph 108(1)(e) and subsection 108(4) of the Immigration and Refugee
Protection Act.
[17]
Against
the authority of Yamba as quoted, I am satisfied that the Officer erred
in law and in a reviewable manner, against a standard of review of correctness,
by failing to consider and to comment on whether the exception in subsection
108(4) of the Immigration and Refugee Protection Act applied in respect
of the Applicant by reason of previous persecution, torture or like treatment
or punishment. I am further satisfied that, by reason of my finding in
paragraph [15] of these reasons, of an implicit acceptance or finding, the
qualifications of Yamba in Kudar v. Canada (Minister of Citizenship
and Immigration,
at paragraph 10, and Naivelt v. Canada (Minister of
Citizenship and Immigration), at paragraph 37, do
not here apply.
b) Patently unreasonable
inferences
[18]
In
the first paragraph quoted above from the decision of the Officer that is under
review, the Officer draws the following inferences:
-
first,
that the Applicant was able to leave the area under the control of the Tigers where
he had been forced to work “… with relative ease”;
-
secondly,
that because the Applicant was able to escape from the Army during what apparently
was perceived as an attack by the Tigers indicates that the Army “…did not
regard [the Applicant] as a serious threat”;
-
thirdly,
that, given the fact that the Applicant was never charged with any offence, Sri
Lankan authorities did not feel that whatever involvement the Applicant had
with
the Tigers
“… was serious enough for them to have any continued interest in [the Applicant];
-
and
finally, that the Sri Lankan army did not regard the Applicant’s level of
involvement with the
Tigers as “… warranting forcible detention or other restrictions on [the
Applicant’s] movement.”
Based on these inferences, the Officer
determined that he was “…not satisfied that [the Applicant] has reason to fear
the authorities or the Army or the [Tigers] would have any interest in [the
Applicant].”
[19]
The
Applicant is a young Tamil male from the north of Sri Lanka. His evidence is that
the Tigers attempted to recruit him; that the Tigers forced him to work for
them; that the Army regarded him as spy for the Tigers, forced him to work for
them and subjected him to what I am satisfied must be regarded as persecution
or torture.
[20]
In Divsalar
v. Canada (Minister of Citizenship and Immigration), my colleague
Justice Blanchard noted at paragraphs 22-24 of his reasons that a tribunal such
as the Refugee Protection Division, and I am satisfied that the same might be
said of the Officer, has complete jurisdiction to determine the plausibility of
testimony, so long as the inferences drawn are not so unreasonable as to
warrant intervention, that a Court should intervene and set aside a
plausibility finding only where the reasons that are stated are not supported
by the evidence, and that a tribunal, and I am satisfied on the facts of this
matter that the Officer falls within the concept of Tribunal, must proceed on
the basis of a lack of plausibility with caution or, put another way,
plausibility findings should only be made in the clearest of cases.
[21]
Against
the profile of the Applicant at the time when he was being abused by both the
Tigers and the Military in Sri Lanka, and that profile continues to this day, I
am satisfied that the Officer’s conclusion that the Army and the Tigers would
no longer have any interest in the Applicant if he were returned to Sri Lanka
is “…so unreasonable as to warrant intervention...” of this Court or, put
another way, is simply not supported by the evidence that was before the
Officer.
c) Country conditions
[22]
In
the second paragraph from the Officer’s decision that is quoted above, the
Officer concludes:
…Your situation, were you to return to Sri Lanka, would appear to be no
more hazardous than that of any other person in that country.
and
…I am therefore satisfied that there is no more
than a mere possibility that you are at risk from the [Tigers] and, if you
were, you could reasonably expect protection from the authorities.
[23]
In
so concluding, the Officer makes no reference to any of the extensive country
conditions documentation that was placed before him on behalf of the
Applicant. In fact, he does not even acknowledge that documentation. While
the conclusions reached by the Officer regarding country conditions in Sri
Lanka might have been open to him on a more fulsome analysis, I am satisfied
that they cannot stand, even against a standard of review of patent unreasonableness,
on the basis of the single paragraph at issue. That paragraph provides no
assurance whatsoever that the Officer had regard to the totality of the
material before him. In fact, it raises serious doubt as to whether the
Officer had any regard whatsoever for the documentary evidence placed before
him on behalf of the Applicant.
CONCLUSION
[24]
For
the foregoing reasons, this application for judicial review will be allowed,
the decision under review will be set aside, and the Applicant’s application
for status in Canada will be referred back
to the Respondent for redetermination by a different officer.
CERTIFICATION OF A QUESTION
[25]
Neither
counsel recommended certification of a question. The Court itself is satisfied
that no serious question of general importance arises on the facts of this
matter that would be determinative of an appeal from the decision herein.
“Frederick E. Gibson”
Ottawa, Ontario
November
19, 2007
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