Date: 20071121
Docket: IMM-6769-06
Citation: 2007 FC 1222
Toronto, Ontario, November 21,
2007
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
KRISHNAMOORTHY
KATHIRGAMU
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (the Act), for judicial review of a decision by a
Pre-Removal Risk Assessment Officer (“PRRA Officer” or “Officer”), dated
November 27, 2006, whereby the applicant’s application for protection was refused.
Background
[2]
The applicant is a Tamil citizen of northern Sri Lanka. He arrived in Canada on October 7, 2000 and made a claim
for refugee protection.
[3]
On February 12, 2001, his claim was deemed
abandoned for failure to file his Personal Information Form within the time
provided.
[4]
The applicant submitted a Pre-Removal Risk
Assessment (PRRA) application on November 16, 2006.
[5]
In his PRRA application, the applicant submits
that he fears both the Liberation Tigers of Tamil Eelam (LTTE) and the Sri
Lankan authorities.
[6]
Specifically, he fears that he will be targeted
by the LTTE as a suspected member of, or collaborator with the Sri Lankan armed
forces because he has been out of the area for a period of time. He also fears
that because he left the LTTE controlled areas illegally he will be at an
increased risk of persecution, torture, and death.
[7]
Additionally, he believes that he will be targeted
as a single (upon his return he will be without his wife and children) Tamil
male from northern Sri Lanka
and will be suspected of being an LTTE member.
[8]
Furthermore, as a Tamil, he will be targeted by
either government forces or their allies in retribution for LTTE attacks. The
applicant states that he was victim of this in 1994 and was subsequently
required to report to the police in Colombo. He failed to do so and now fears that he will be targeted by the
police upon his return.
[9]
The Officer rejected the applicant’s PRRA
application based on the availability of an Internal Flight Alternative (IFA)
in Colombo. The Officer noted
that the applicant’s evidence was silent about conditions in southern regions
and particularly Colombo and
preferred independent documentary evidence in this regard. No less than (9)
nine recent country condition documents were ultimately considered in the
Officer’s analysis.
[10]
The PRRA Officer emphasized that the United
Nations High Commissioner for Refugees (UNHCR) had no knowledge of returning
Tamils having been singled out for adverse treatment under Sri Lanka’s Immigrants and Emigrants Act.
Further, an immigration official at the Canadian High Commission in Colombo has stated that allegations that
returnees to Sri Lanka are
tortured are a complete fabrication. Returnees who do not have pending arrest
warrants or active charges in Sri Lanka are simply released. Both the UNHCR and Canadian High Commission
evidence revealed that some returnees may be questioned at the airport and then
allowed to leave or otherwise not questioned at all.
[11]
The Officer indicated that the applicant’s past
treatment, on its own, did not warrant granting protection nor was it
necessarily indicative of a forward-looking risk in light of documentary
evidence regarding country conditions and the applicant’s personal
circumstances.
[12]
Moreover, the officer emphasized that
documentary evidence indicates that Tamils fleeing persecution or the war in
the northeast can generally find a safe haven in government-controlled areas.
Furthermore, while periodic security measures are in place in Colombo and young
Tamils particularly those newly arrived in Colombo from the north may be
stopped, checked, arrested or detained for a short period of time, most are
released after their identity is checked. These short term detentions for the
purpose of preventing disruptions or dealing with terrorism do not constitute
persecution.
Analysis
[13]
In Kim v. Canada (Minister of Citizenship and Immigration), [2005] FC 437, [2005] F.C.J. No. 540 (QL), at paras. 8-22,
after conducting a pragmatic and functional analysis, Mosley J. affirmed that
“in the judicial review of PRRA decisions the appropriate standard of review
for questions of fact should generally be patent unreasonableness, for
questions of mixed law and fact, reasonableness simpliciter, and for
questions of law, correctness.”
[14]
When reviewing administrative decisions, the reasons
provided are not to be read microscopically (Boulis v. Canada (Minister of
Manpower and Immigration), [1974] S.R.R. 875 at 885). The decision must be
assessed as a whole and within the context of the evidence (Miranda v.
Canada (Minister of Employment and Immigration), [1993] 63 F.T.R. 80, para.
3).
[15]
The applicant first submits that the PRRA Officer
failed to assess the applicant’s evidence of past incidents of torture in
coming to a conclusion that the applicant’s fears of persecution were not
objectively well founded.
[16]
It is well established that even though the
determination of a well-founded fear of persecution is forward-looking,
instances of past persecution must be assessed when put forth by the applicant
(Natynczyk v. Canada (Minister of Citizenship and Immigration), [2004] FC 914, [2004] F.C.J. No. 1118 (QL), at para 71).
[17]
In the present case, the Officer reviewed the
country condition documentation and concluded that the applicant would not face
persecution. The Officer noted on page 2 of the decision that the applicant had
been targeted by government forces in the past. Further on in the reasons she
indicated that she did not believe that the applicant’s past treatment, in
light of the documentary evidence, warranted a granting of protection. Thus,
it cannot be said that she failed to assess the applicant’s personal circumstances.
[18]
The applicant further argues that
the PRRA Officer misconstrued his fear by stating that he feared to return to
Sri Lankan because of his prolonged absence from that country, when in reality
his fear stemmed from the fact that he had been required to report to the Sri
Lankan authorities in 1994 but failed to do so. Again, I disagree.
[19]
In the present case, the Officer turned her mind
to the specific fears put forth by the applicant. She indicated that the
applicant feared being targeted as a Tamil by either government forces or their
allies in retribution for LTTE attacks against others. Thus, she recognized
that the applicant has been a victim in the past. At page 2 of the decision,
the Officer explicitly referred to the fear that the applicant asserts was not
considered: “In 1994, the applicant submits that he was required to
report to the police in Toronto
and failed to do so; he will be targeted by the police for failing to
report.”
[20]
Again, I am unable to conclude that the PRRA
Officer misapprehended the applicant’s fear.
[21]
The applicant also submits that the PRRA officer
erred in determining that Tamils fleeing persecution can generally find an (IFA)
in government controlled areas and in concluding that the target of arrests and
detentions in Colombo were ‘young’ Tamils.
[22]
It is true that the Officer indicated that
Tamils fleeing persecution can generally find an IFA in government controlled
areas, and that the target of arrests are young Tamils, most of whom are
released after identity checks. However, what is relevant in the present case
is that the particular circumstances of the applicant were addressed. The
Officer specifically analyzed the applicant’s circumstances and found that
while he was likely to be questioned by the authorities with regard to his identity
and previous whereabouts, he would be able to prove his identity “being in
possession of NIC (National Identity Card) and a birth certificate” and thus
would be released.
[23]
I find that the conclusion on the availability
of an IFA was not patently unreasonable.
[24]
For these reasons, the application for
judicial review of the PRRA Officer’s decision is dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application for judicial review of the PRRA Officer’s
decision is dismissed.
“Danièle
Tremblay-Lamer”
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