Date: 20081125
Dockets: IMM-931-08
IMM-932-08
Citation: 2008 FC
1312
Ottawa, Ontario, November 25,
2008
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
ERNEST SIGMAN MARCELINE
PILLAI,
LATECIA SWENTHINI JOACHIMPILLAI
AND STEFFI LETTITIA PILLAI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
The
applicants, in these two judicial review applications, are Christians
(Catholics) of Tamil ethnicity and of Sri Lankan citizenship. The father,
Ernest Pillai was born in Colombo; the mother, Latecia
Joachimpillai in Jaffna and their 6 year old daughter Steffi in Colombo. Their two
other children were born in Canada: a 4 year old son Emmanuvel on April 2,
2004 and a soon to be 3 year old daughter Izabelle on November 30, 2005. The
two decisions they challenge are both dated December 28, 2008 and were
rendered by the same Immigration Officer: a negative Pre-Removal Risk
Assessment (the PRRA) and a negative application for permanent residence in Canada based on
H&C grounds (the H&C decision).
[2]
The
applicants arrived in Canada from Sri Lanka on May 8, 2003 where
the parents had resided since 1993 in Mattakuliya which is close to Colombo. They made a
refugee claim shortly thereafter which was refused on February 15, 2005.
Mr. Pillai’s testimony was found not to be credible; leave to appeal that
decision was denied by a judge of this Court.
[3]
In
putting forward their refugee claim, Mr. Pillai advanced that in 1999 he
had established a business in Mattakuliya – a communication center – which
became the source of his future problems with the LTTE and the Sri Lankan
authorities. In particular, many Tamils came to his communication center to
make phone calls which attracted police interest and their suspicion these
callers were linked to the LTTE and Mr. Pillai was supporting that organization.
Mr. and Mrs. Pillai say they were both arrested and tortured by the Sri Lankan
police in 2001 and another time in 2003 after allegedly
Tamil Tigers asked him to distribute LTTE cassettes. For various reasons, the
RPD concluded on Mr. Pillai’s lack of credibility and ruled he never was the
owner of that communication center and therefore his claim the couple had been
arrested and tortured by the police could not be believed.
[4]
On
January 9, 2006, Citizenship and Immigration Canada (CIC) received from the
applicants an application for permanent residence from within Canada; their
application was a request for an exemption from the normal requirement that a
permanent residence visa to this country be obtained from outside Canada. One of the
grounds advanced by the applicants justifying such exemption was their
allegation, if required to obtain their permanent residence visas from Sri Lanka, they would
be at risk because of their ethnicity. Another ground advanced was the best
interests of their children.
[5]
On
April 11, 2007, the applicants made an application for a Pre-Removal Risk
Assessment (PRRA); they provided submissions on April 27, 2007 and updated
information on December 20, 2007.
[6]
As
noted, on December 28, 2007, PRRA Officer Jacques denied both applications
giving rise to these two judicial review applications: IMM-931-08 with respect
to their H&C application and IMM-932-08 with respect to the PRRA decision.
Since the risk of return to Sri Lanka is at the centre of both applications and
since the determinations of risk were made by the same decision maker on
substantially the same risk analysis there existed, in my view, a sufficient
basis to issue one set of reasons covering both refusals with appropriate nuances
being made where different considerations arise in their separate applications.
[7]
Counsel
for the applicants at the hearing of the applications challenged the PRRA
decision on the following grounds:
·
The
Officer erred in law in stating that the applicants must demonstrate a
personalized risk of persecution conflating the criteria required under section
96 of the Immigration and Refugee Protection Act (the Act) with
those required under section 97 of that same Act;
·
The
Officer erred in fact when concluding the applicants did not face a risk of
arrest, detention and torture or other forms of mistreatment during detention;
·
The
Officer erred in law in concluding that arbitrary detention is mere discrimination
and was insufficient to warrant protection.
[8]
Counsel
for the applicants raised at the hearing two points with respect to the H&C
decision:
·
The
Officer erred when concluding that the risks of detention the applicants faced
in Sri Lanka being of Tamil ethnicity (which he himself acknowledged) did not
constitute undue, undeserved or disproportionate hardship; and
·
The
Officer erred in providing only a cursory assessment of the children’s best
interests.
[9]
I
should add the respondent voluntarily stayed the applicants’ deportation to Sri Lanka after the
applicants had requested the United Nations Committee on Human Rights to review
their case. At the date of these judgments that review appears to be on-going
according to applicants’ counsel.
The tribunal decisions
1) The risk factors
(a) The H&C decision
[10]
The
risk analysis described below speaks only to the risk the applicants would
suffer from the Sri Lankan authorities and not from the LTTE since counsel for
the applicants indicated to the Court their fear of the LTTE was not at issue.
The tribunal acknowledged, since the IRB’s decision in February 2005, both the
Sri Lankan government and the armed opposition LTTE had undertaken in mid 2005 major
military operations after agreeing to the 2002 ceasefire which, in the
tribunal’s view, had in 2006 effectively been abandoned. The Sri Lankan
government had put into place its Emergency Regulations in August 2005. The
tribunal noted the main incidents of insecurity were in the northern and
eastern districts of Sri Lanka with the hostilities
“causing a dramatic increase in serious human rights violations”. Colombo is in
the western part of Sri Lanka. It found there was indiscriminate shelling
and aerial bombings by the Sri Lankan armed forces causing harm to civilians
and large displacements of population.
[11]
The
crux of the findings, which counsel for the applicants takes issue with, are
contained in the following paragraphs of the H&C decision:
Emergency Regulations imposed since August 2005 allow
for the arrest of individuals by members of the armed forces. Those
detained must be turned over to the police within 24 hours but may be held for
a period of up to one year without trial. Regular cordon and search
operations continue to take place where there are pockets of Tamils in
predominantly Sinhalese and Muslim areas. Although the majority of those
arrested are Tamils, there was no evidence of torture in any previous cases
investigated by the HRC12.
Those individuals who would be of
continuing interest to the authorities will normally be high profile members of
the LTTE. Such
individuals may face prosecution for serious offences although there in no
evidence indicated that they would be unfairly treated under Sri Lankan law. There
continues to be no evidence that the authorities in Sri Lanka are concerned with individuals
having provided past low-level support for the LTTE13.
Given the current state of alert, the
possibility exists for the applicants to be temporarily detained by the Sri
Lankan authorities in Colombo. However, the applicants’
involvement in the LTTE was incidental and it is therefore unlikely that they
would be subject to prosecution. While the applicants’ Tamil origins make them
a target for detention, the available evidence does not show that such
discrimination has severe consequences.
In terms of risk, I am not satisfied the
applicants would face unusual and undeserved or disproportionate hardship in
applying for permanent residence from abroad. I therefore assign little weight
to risk elements in determining whether exceptional consideration is warranted
in this case.
[Emphasis mine.]
(b) The PRRA decision
[12]
The
PRRA officer stated the risks identified by the applicants were section 96
risks – a well founded fear of persecution and the Act’s section 97 risks – the
need for protection because of danger of torture, threats to their lives and
cruel and unusual treatment or punishment. The applicants in their submissions expressed
fears of both the Sri Lankan authorities and the LTTE. As noted, fear from the
LTTE is not an issue in these proceedings. According to the PRRA officer, the
applicants alleged they feared the Sri Lankan authorities because the
authorities suspect Tamils of being sympathetic to the LTTE and because this
perception is widespread Tamils do not have effective recourse to state
protection. I reproduce in the Annex “A” to these reasons sections 96 and 97 of
the Act.
[13]
The
applicants submitted 32 pieces of new evidence identified as P-1 to P-32.
Counsel for the applicants did not take issue with the exclusion of 4 exhibits
on the ground they predated the IRB’s decision.
[14]
The
tribunal stated: “The risks invoked by the applicants in support of their PRRA
request are substantially the same as those presented before the IRB. …”,
adding: “They state furthermore that they face generalized risk given the state
of conflict within Sri Lanka” and he also mentions they are Christian. The
applicants did not take issue with the tribunal’s findings concerning their
Christian faith.
[15]
Under
the heading “Generalized Risk faced by the Applicants”, the PRRA officer
essentially replicated what he had written in his H&C decision about the outbreak
of the civil war, the location of the fighting and the degradation to human
rights that flowed from the conflict.
[16]
The
following two paragraphs were not contained in the tribunal’s H&C
decision and is the basis of the argument by the applicants’ counsel the PRRA
officer erred in his analysis under section 96 of the Act because that
section, he advanced, does not require a demonstration they would be personally
at risk :
Overall the documentation demonstrates
that the applicants face two sources of risk that are objectively identifiable.
However, protection is limited to those who face a specific risk not faced generally
by others in the country. There must be some particularization of the risk to
those claiming protection as opposed to a random risk faced the applicants and
others.
In the present application, none of the
evidence submitted supports the conclusion that the applicants are personally at
risk from heightened conflict or religious persecution. While the civil instability
has occurred in Sri
Lanka since
2006, the applicants have not demonstrated that they would be at greater
risk than the general population. For this reason, the applicants do not
meet the common considerations prescribed by sections 96 or 97 of the LIPR
regarding these threats. [Emphasis mine.]
[17]
The
PRRA officer then analysed the risk posed by the LTTE and, for reasons already
given, I need not analyse the PRRA officer’s findings on this point.
[18]
He
examined the risks posed by the Sri Lankan authorities writing: “The applicants
fear ill-treatment amounting to persecution by the Sri Lankan authorities due
to alleged LTTE involvement. Specifically, the applicants cite arbitrary
detention and torture among threats posed by the government against those of
Tamil origin.”
[19]
After
describing Sri
Lanka
as a constitutional democracy, the PRRA officer mentioned the control of the 66,000-member
police force was placed under the Ministry of Defence after the November 2005
presidential elections. It wrote: “The increased conflict in 2006 led to a
sharp rise in human rights abuses committed by police including torture and
detention without trial. Impunity is a severe problem, particularly in cases of
police torture and of civilian disappearances in high security zones.”
[20]
The
tribunal then repeated, in substantially the same terms, two paragraphs found
in the H&C decision. These two paragraphs are the first two paragraphs
quoted in paragraph 9 of these reasons which for convenience I reproduce once
again here:
Emergency Regulations imposed since August 2005 allow
for the arrest of individuals by members of the armed forces. Those
detained must be turned over to the police within 24 hours but may be held for
a period of up to one year without trial. Regular cordon and search
operations continue to take place where there are pockets of Tamils in
predominantly Sinhalese and Muslim areas. Although the majority of those
arrested are Tamils, there was no evidence of torture in any previous cases
investigated by the HRC12.
Those individuals who would be of
continuing interest to the authorities will normally be high profile members of
the LTTE. Such
individuals may face prosecution for serious offences although there in no
evidence indicated that they would be unfairly treated under Sri Lankan law. There
continues to be no evidence that the authorities in Sri Lanka are concerned with individuals
having provided past low-level support for the LTTE13.
[21]
The
tribunal continued:
In the present case, the IRB did not
assign any credibility to the applicants’ allegations of mistreatment at the
hands of the Sri Lankan authorities. Furthermore, the applicants have not
submitted any evidence that they were detained by the police in connection with
their imputed involvement in LTTE activities. Finally, documentary sources
indicate that it is unlikely the applicants would be targeted by the Sri Lankan
authorities given their limited involvement with the LTTE.
Nevertheless, the available documentation
indicates that security measures undertaken by the Sri Lankan government have
intensified since the IRB decision. However, this evidence does not objectively
demonstrate that the increased police action would cause the applicants serious
harm beyond a certain level of discrimination. As a result, there remain
insufficient grounds on which to conclude that the applicants face risk
amounting to persecution from the Sri Lankan authorities. [Emphasis mine.]
2) The H&C considerations
[22]
In
its H&C decision, in addition to its consideration of the risk factors
previously discussed in these reasons, the tribunal dealt with two additional
matters the applicants had raised in their submissions to their H&C
application: their links to Canada in terms of establishment and the best
interests of the children.
[23]
Counsel
for the applicants did not challenge the tribunal’s findings that:
“Taken as a whole, the applicants have
not provided evidence of links to Canada
that if broken would warrant an exemption on humanitarian grounds. On this
basis, I [sic] not satisfied that applying for permanent
residence from outside Canada would cause the applicants
unusual and undeserved or disproportionate hardship.”
[24]
The
other additional attack on the H&C decision made by counsel for the
applicants focussed on its analysis and findings concerning the best interests
of the children as required by section 25 of the Act which reads:
|
25. (1) The Minister shall, upon request of a
foreign national in Canada who is inadmissible or who does not meet the
requirements of this Act, and may, on the Minister’s own initiative or 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 obligation of
this Act if the Minister is of the opinion that it is justified by
humanitarian and compassionate considerations relating to them, taking into
account the best interests of a child directly affected, or by public policy
considerations.
|
|
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, de sa propre initiative ou sur demande d’un étranger se
trouvant hors du Canada, étudier le cas de cet étranger et peut lui octroyer
le statut de résident permanent ou lever tout ou partie des critères et
obligations applicables, s’il estime que des circonstances d’ordre
humanitaire relatives à l’étranger — compte tenu de l’intérêt supérieur de
l’enfant directement touché — ou l’intérêt public le justifient.
|
[25]
The
tribunal began its discussion of the best interests of the children by stating
that “Officers must be alert and sensitive to the interests of the children
when examining applications made on humanitarian and compassionate grounds”
noting that “… the best interests of a child do not outweigh the many other
factors the officer must consider when making such a decision” which according
to the tribunal will depend on the facts of the case with the burden of
providing sufficient evidence to support their claim being on the applicants.
[26]
The
tribunal said there were three children affected by the outcome of his
evaluation: Steffi and her Canadian born brother and sister noting, according
to the parents’ submission, their Canadian born children would accompany them
if the family was obliged to return to Sri Lanka.
[27]
The
essence of the tribunal’s findings and conclusions are contained in the
following paragraphs of its H&C decision:
In the event of return to Sri Lanka, all of the children affected
by this application would commence living in an unfamiliar country. The
resulting impact would differ according to the respective ages of the children.
However, all three are still at an age where the family remains the centre of
their social development.
If the applicants were required to apply
for permanent residence from Sri
Lanka, the children
would continue to benefit from contact with both parents. With such
guidance, I am satisfied that they would be able to transition successfully
into Sri Lankan society. As a result, I find that re-integration would not
cause the children unusual and undeserved or disproportionate hardship.
Sri Lankan law requires school attendance
for children between ages five to 14 and approximately 85% of children under 16
attend school. The government has established extensive public education and
health care systems to benefit children. Education is free through to the
university level as is health care and immunization14.
While the government has demonstrated a
commitment to child welfare, exploitation remains a serious problem for
children without adequate support. However, the children in the present case
will be accompanied by their parents if they are required to return to Sri Lanka. With the care of family
members, I am satisfied that they will be provided access to healthcare and
education without unusual, undeserved or disproportionate hardship.
Conclusion
The applicants have raised certain
personal circumstances in support of their application for an exemption on
humanitarian and compassionate grounds. I have considered and weighed all of
the evidence submitted by the applicants, the information contained in their
files, as well as the available documentation. I am not satisfied that the
applicants would face unusual and undeserved or disproportionate hardship, if
required to apply for permanent residence from outside of Canada. [Emphasis mine.]
Analysis
(a) The Standard of Review
[28]
In
its recent judgment in Dunsmuir v. New Brunswick, 2008 SCC 9 (Dunsmuir),
the Supreme Court of Canada reformed its previous standard of review analysis
in a number of ways and did so specifically by reducing from three to two the
number of standards by eliminating the patently unreasonable standard and
rolling it into the reasonableness standard. At paragraph 51 of the decision,
Justices Bastarache and LeBel wrote that: “ … questions of fact, discretion
and policy as well as questions where the legal issues cannot be easily
separated from the factual issues generally attract a standard of
reasonableness while many legal issues attract a standard of correctness. Some
legal issues, however, attract the more deferential standard of reasonableness.”
[29]
At
paragraph 57 in Dunsmuir, they added that an exhaustive
review was not required in every case to determine the proper standard of
review if existing jurisprudence has settled on the appropriate standard of
review.
[30]
In terms of the PRRA decision, counsel for the applicants proposed
the officer’s purely factual findings are to be reviewed on the standard of
reasonableness but also noted that under section 18.1(4)(d) of the Federal
Courts Act the Federal Court may quash a decision which is based on a finding of
fact made in a capricious or arbitrary manner or without regard to the material
before it. Errors of law are to be reviewed on the standard of correctness with
questions of mixed fact and law attracting the reasonableness standard, he
suggested. I agree with counsel for the applicants’ view which was endorsed by
the Federal Court of Appeal in Raza v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 385, at paragraph 3.
[31]
What
the reasonableness standard means was addressed by Justices Bastarache and
LeBel in Dunsmuir at paragraph 47 where they wrote:
47 Reasonableness
is a deferential standard animated by the principle that underlies the
development of the two previous standards of reasonableness: certain questions
that come before administrative tribunals do not lend themselves to one
specific, particular result. Instead, they may give rise to a number of
possible, reasonable conclusions. Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A court conducting a
review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law. [Emphasis mine.]
[32]
In
terms of the H&C decision, counsel for the applicants, pointing to the
Supreme Court of Canada’s decision in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, submits the
standard of review was reasonableness. He also referred to my colleague Justice
Campbell’s decision in Kolosovs v. Canada (Minister of Citizenship and
Immigration), 2008 FC 165 to the effect that a failure by an Immigration
Officer to demonstrate he/she was alert, alive and attentive to the best
interests of the children was also reviewable on the reasonableness standard. I
agree with those submissions and would add where an Immigration Officer erred
in law by applying the wrong test the appropriate standard is correctness (see
Pinter v. Canada (Minister of
Citizenship and Immigration), 2005 FC 296).
(b) Discussion and conclusions
[33]
In
Boulis v. Minister of Manpower and Immigration, [1974] S.C.R. 875,
Justice Laskin, as he then was, instructed the Courts on the proper approach in
judicial review matters in terms of its reasons. He wrote at page 885 that an
administrative tribunal’s reasons “are not to be read microscopically;
it is enough if they show a grasp of the issues that are raised … and of the
evidence addressed to them, without detailed reference. The Board’s record is
available as a check on the Board's conclusions.”
[34]
Justice
Joyal put it this way in Miranda v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 437; 63 F.T.R. 81:
For purposes of judicial review, however, it is my view that a Refugee Board decision
must be interpreted as a whole. One might approach it with a pathologist's
scalpel, subject it to a microscopic examination or perform a kind of semantic
autopsy on particular statements found in the decision. But mostly, in my
view, the decision must be analyzed in the context of the evidence itself. I
believe it is an effective way to decide if the conclusions reached were
reasonable …
I
have now read through the transcript of the evidence before the Board and I
have listened to arguments from both counsel. Although one may isolate one
comment from the Board's decision and find some error therein, the error must
nevertheless be material to the decision reached. And this is where I fail to
find any kind of error.
It
is true that artful pleaders can find any number of errors when dealing with
decisions of administrative tribunals. Yet we must always remind ourselves of
what the Supreme Court of Canada said on a criminal appeal where the grounds
for appeal were some 12 errors in the judge's charge to the jury. In rendering
judgment, the Court stated that it had found 18 errors in the judge's charge,
but that in the absence of any miscarriage of justice, the appeal could not
succeed. [Emphasis mine.]
[35]
In
Enbridge Gas Distribution Inc. v. Ontario (Energy
Board),
(2006) 210 O.A.C. 4, the Ontario Court of Appeal
stressed the importance of reading a decision as a whole to understand how an
administrative tribunal used and understood certain phrases. A Court should not
review phrases in isolation but in context and read them in such a way to
ensure harmony and internal consistency.
Issue No. 1 – Conflating
sections 96 and 97 of the Act in the risk assessment
[36]
Under
the heading “Generalized risk faced by the Applicants”, the PRRA Officer wrote
about the heightened levels of insecurity resulting from the renewed
hostilities between the Sri Lankan authorities and the LTTE which was “causing
a dramatic increase in serious human rights violations” and a pattern of
enforced disappearances has re-started (in the northern and eastern regions)
with similar incidents reported in other regions.
[37]
It
then went on to write:
“… However, protection is
limited to those who face a specific risk not faced generally by others
in the country. There must be some particularization of the risk to
those claiming protection as opposed to a random risk faced the applicants and
others.
In the present application,
none of the evidence submitted supports the conclusion that the applicants are personally
at risk from heightened conflict or religious persecution. While the civil
instability has occurred in Sri
Lanka since
2006, the applicants have not demonstrated that they would be at greater risk
than the general population. For this reason, the applicants do not meet the
common considerations prescribed by sections 96 or 97 of the LIPR
regarding these threats.” [Emphasis mine.]
[38]
Focussing
on the words “none of the evidence supports the conclusion that the applicants
are personally at risk”, counsel for the applicants argues the tribunal erred
by conflating section 96 of the Act into section 97 of that same Act.
He argues the jurisprudence is clear the applicants need not demonstrate they have
experienced personal persecution in order to establish a well-founded fear of
persecution referring to the Federal Court of Appeal’s decision in Salibian
v. Canada (Minister of Employment and Immigration), (1990), 11 Imm. L.R.
(2d) 165 (Salibian) and Justice Martineau’s decision in Fi v. the
Minister of Citizenship and Immigration, 2006 FC 1125 which relied on Salibian.
Counsel for the applicants argues the applicants can establish a well founded
fear of persecution by pointing to similarly situated persons who have been
persecuted (in this case members of the group they belonged – Tamils as a
group).
[39]
In
Salibian, the Federal Court of Appeal concluded the Refugee Division had
erred when it dismissed his application on the basis of a lack of evidence of personal
persecution in the past. Justice Décary wrote:
This conclusion is a twofold error: in order to claim Convention
refugee status, there is no need to show either that the persecution was
personal or that there had been persecution in the past. [Emphasis mine.]
[40]
Justice
Décary also stated it was settled law that:
(3) a situation of civil war in a given
country is not an obstacle to a claim provided the fear felt is not that
felt indiscriminately by all citizens as a consequence of the civil war, but
that felt by the applicant himself, by a group with which he is associated, or
if necessary by all citizens on account of a risk of persecution based on one
of the reasons stated in the definition; [Emphasis mine.]
[41]
With
respect, I cannot agree with counsel for the applicants’ submission. The PRRA
Officer did not say that the applicants were obliged to show personal
persecution in the past (which in any event they could not because the RPD’s
finding Mr. Pillai not credible on past persecution) but rather that in the
future they were at risk from being persecuted as a result of the heightened
conflict. This risk had to be particularized (personalized).
[42]
I
adopt the line of cases advanced by counsel for the respondent that in its
context the use of such words as “personally at risk”, a “personalized risk”,
“the risk must be individualized” does not mean section 96 is conflated into
section 97. My colleague Justice Mosley put it this way in Raza v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1385 (Raza), at paragraph
29:
29 The
assessment of new risk developments by a PRRA officer requires consideration of
sections 96-98 of IRPA. Sections 96 and 97 require the risk to be
personalized in that they require the risk to apply to the specific person
making the claim. This is particularly apparent in the context of section 97
which utilizes the word "personally". In the context of section 96,
evidence of similarly situated individuals can contribute to a finding that a
claimant's fear of persecution is "well-founded". That being
said, the assessment of the risk is only made in the case of a PRAA application
on the basis of "new evidence" as described above, where a negative
refugee determination has already been made. [Emphasis mine.]
[43]
Other
cases making the same point as in Raza are Osorio v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1459; Canada (Minister of
Public Safety and Emergency Preparedness) v. Gunasingam, 2008 FC
181; Hazell v. Canada (Minister of Citizenship and Immigration), 2006 FC
1323 and Jarada v. Canada (Minister of
Citizenship and Immigration), 2005 CF 409 at paragraph 28.
[44]
I
conclude on this point by stating that it was open for the applicants to
demonstrate they were similarly situated as other persons. As is seen later in
these reasons the way to demonstrate similarly “situatedness” is through a risk
analysis applying appropriate risk factors because not all Tamils are similarly
situated when it comes to a well founded fear of persecution (section 96) or
risk of torture or cruel punishment (section 97).
Issue No. 2 – Errors in
the assessment of risks
[45]
Counsel
for the applicants argues the tribunal misread the evidence and to substantiate
this point he refers to the statement in the PRRA decision that regular cordon
and search areas are conducted in places where there are pockets of Tamils;
that the majority of those arrested are Tamils but then states “there
was no evidence of torture in any previous cases investigated by the HRC” (meaning
the Sri Lankan Human Rights Commission).
[46]
He
argues, by reference to the documentary evidence and particularly the Home
Office reports from the UK in March and November 2007, where the statement is
found, the Freedom House report on Sri Lanka (2007) and Amnesty International
Report for 2007 on Sri Lanka shows this statement of no evidence of torture of
persons arrested and detained by the police is an isolated statement which is
contradicted by many passages of the same UK Home Office report as well as in
other reports from other organizations and that it is particularly so when the
status, legitimacy and independence of the Sri Lankan Human Rights Commission
is called into question because of the manner its members were appointed by the
President.
[47]
I
agree with counsel for the applicants, after reviewing the documentary evidence
as a whole, it would appear that the PRRA Officer “cherry-picked” this
statement and was wrong in relying on it while ignoring other evidence which
impugned that statement although to be fair to the PRRA Officer, he did write the
following in his PRRA decision in the paragraph immediately preceding the one
where the objectionable statement is found:
Following the November 2005 presidential
elections, the government eliminated the Ministry of Internal Security. Control
of the 66,000-member police force was placed under the Ministry of Defence20.
The increased conflict in 2006 led to a sharp rise in human rights abuses
committed by police including torture and detention without trial21.
Impunity is a severe problem, particularly in cases of police torture
and of civilian disappearances in high security zones22. [My
emphasis.]
[48]
As
argued by counsel for the respondent, the real question is whether this error
is material or central to the PRRA decision. Counsel for the Minister argues
that it is purely hypothetical since the PRRA Officer concluded the risk of their
being arrested was only a possibility and not a probability. For the reasons
expressed in the next issue, I agree that this finding was not material or
determinative.
Issue No. 3 – No serious
harm from increased police action and detention is only discrimination
[49]
Counsel
for the applicants built his submissions on the following findings made by the
PRRA Officer:
·
Regular
cordon and search operations occur in Tamil areas in cities such as Colombo;
·
Those
arrested in those operations are mostly Tamils;
·
The
recognition of increased police action because of the renewed conflict;
·
Given
the current state of alert, the possibility exists for the applicants to be temporarily
detained by the Sri Lankan authorities in Colombo;
·
The
recognition that the applicants’ Tamil origins make them a target for
detention.
[50]
Counsel
for the applicants argues, in the light of the documentary record, the PRRA
Officer’s conclusions that what the applicants face is not persecution but
discrimination and that detention is not “persecutorial” but discriminatory
without serious consequences is unreasonable and perverse.
[51]
Counsel
for the Respondent argues that the documentary evidence read as a whole does
not paint the picture counsel for the applicants says it does and he points to
the following elements:
·
There
are 400,000 Tamils living in Colombo; they make up 10% of
the population of that city;
·
Not
all Tamils are at risk of being detained;
·
The
record shows 528 persons were detained in 2006 under the Emergency
Regulations and that 288 were released within 12 hours while much of the
remainder released a day or so after leaving only 15 believed to remain in
detention;
·
The
applicants were not at risk of being detained on arrival at Colombo’s airport or
during the sweeps. They do not have the profile which makes them subject of
interest to the Sri Lankan authority; they have a low profile; their detention
is a mere possibility and an IRB report on failed refugees returning to that
country from Canada shows that none have been arrested or detained at the
Colombo’s airport;
·
Even
if the applicants are detained, it would be for a short period of time and the
jurisprudence of this Court is to the effect such detention is not persecution
and is not a breach of section 97 of this Act (see Sinnasamy v.
Canada (Minister of Citizenship and Immigration), 2008 FC 67), a decision
rendered by my colleague Justice de Montigny who pointed out that in
every case the personal circumstances of an individual such as age and gender
must be taken into account. What my colleague was referring to was an
identification of risk factors which is an accepted and recognized methodology
to determine the degree of risk, if any.
[52]
Counsel
for the respondent put before me two cases where the identification of risk
factors was the determining factors in the decision reached. These cases are: (1)
LP and the Secretary of State for the Home Department, a decision of the
three members Asylum and Immigration Tribunal of the United Kingdom reported at
[2007] UKAIT 00076 and (2) a decision of the Fourth Section of European Court
of Human Rights released on July 17, 2008 in the case of N.A. v. the
United Kingdom involving a case of a failed Tamil refugee claim whom the UK
was proposing to return to Sri Lanka. In that case the European Court considered
and explicitly approved of the LP case and a judicial review thereof in the UK.
[53]
I
quote the following from the LP decision:
(1)
Tamils
are not per se at risk of serious harm from the Sri Lankan authorities in Colombo. A number of factors may increase the
risk, including but not limited to: a previous record as a suspected or
actual LTTE member; a previous criminal record and/or outstanding arrest
warrant; bail jumping and/or escaping from custody; having signed a confession
or similar document; having been asked by the security forces to become an
informer; the presence of scarring; return from London or other centre of LTTE
fundraising; illegal departure from Sri Lanka; lack of an ID card or other
documentation; having made an asylum claim abroad; having relatives in the
LTTE. In every case, those factors and the weight to be ascribed to them,
individually and cumulatively, must be considered in the light of the facts of
each case but they are not intended to be a check list.
(2)
If a
person is actively wanted by the police and/or named on a Watched or Wanted
list held at Colombo airport, they may be at risk
of detention at the airport.
(3)
Otherwise,
the majority of returning failed asylum seekers are processed relatively
quickly and with no difficulty beyond some possible harassment.
(4)
Tamils
in Colombo are at increased risk of
being stopped at checkpoints, in a cordon and search operation, or of being the
subject of a raid on a Lodge where they are staying. In general, the risk again
is no more than harassment and should not cause any lasting difficulty, but
Tamils who have recently returned to Sri Lanka and have not yet renewed their Sri
Lankan identity documents will be subject to more investigation and the factors
listed above may then come into play.
(5)
Returning
Tamils should be able to establish the fact of their recent return during the
short period necessary for new identity documents to be procured.
(6)
A
person who cannot establish that he is at real risk of persecution in his home
area is not a refugee;
but his appeal may succeed under article 3 of the ECHR, or he may be
entitled to humanitarian protection if he can establish he would be at risk in
the part of the country to which he will be returned. [Emphasis mine.]
[54]
In
coming to the conclusion LP’s appeal is dismissed on asylum grounds, the
tribunal came to the conclusion that “specific profiles of individual claimant’s
need to be considered and there is not a situation of real risk to large
swathes of the Tamil population in Colombo or to returning failed
asylum seekers”. In particular, the tribunal found the risks to young male
Tamils had increased as a result of the breakdown of the ceasefire.
[55]
The
European
Court
also concluded at paragraphs 125 and 126 of its decision that the deterioration
of human rights conditions resulting from the breakdown of the ceasefire
did not create a general risk to all Tamils returning to Sri Lanka. This is why
it required specific risk profiles based on risk factors on an individual
basis.
[56]
The
PRRA Officer came to the conclusion the applicants’ profile did not
expose them to a risk of persecution or torture or cruel or unusual punishment
if returned to Colombo. That conclusion was not challenged by the
applicants nor did they advance in argument the PRRA Officer ignored any
relevant evidence relating to their risk profile.
[57]
For
these reasons, the applicants challenge to the PRRA decision in IMM-932-08 must
be dismissed as must their challenge in the H&C decision as it relates to
the alleged error advanced against the finding in the H&C decision the
applicants were not at risk of return to Sri Lanka for the purpose of applying
there for permanent residence in Canada. It now remains to be seen whether
their argument as to the best interests of the children (Steffi, a citizen of Sri Lanka and her
brother and sister born in Canada) was appropriately considered and
analysed.
Issue No. 4 – The
H&C decision – the best interests of the children
[58]
Counsel
for the applicants argues that the tribunal’s assessment of the best interests
of the children was defective. He argued, based on the Supreme Court of
Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 (Baker), at paragraph 75, the Officer had an
obligation to “… consider children's best interests as an important factor, give
them substantial weight, and be alert, alive and sensitive to them”. He
submitted the Officer did not meet his obligation for the following reasons
which show his decision was flawed:
·
The
Officer’s reasons fail to disclose an adequate analysis of the humanitarian and
compassionate consideration underpinning the best interests of the
children involved as there is no real identification and consideration of those
interests nor a balancing of those interests with public interest factors which
would favour in the exercise of the Minister’s discretionary power the removal
of the family unit to Colombo;
·
In
particular, counsel for the applicants submits the Officer makes no mention of
the fact the children would be returning to a country which is in the midst of
a civil war or his previous finding their parents could be targets for
detention because of their ethnicity and this without regard to the regularity
of cordon and search operations in Tamil areas, arrests and detentions and the prevalence
of acts of terrorism in Colombo itself. Moreover, the applicants argue
nowhere does the Officer consider what might become of the children if, as the
Officer seems to appreciate, their parents would be targeted for arbitrary
arrest and detention much less what may occur if the children themselves are
detained;
·
Detention,
in the circumstances of this case, is undue hardship.
[59]
The
jurisprudence of the Supreme Court of Canada in Baker, as explained in
its decision in Suresh v. Canada (Minister of Citizenship and Immigration),
[2002] 1 S.C.R. 3 and of the Federal Court of Appeal in Legault v. Canada
(Minister of Citizenship and Immigration), 2002 FCA 125 (Legault), in
Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA
475 (Hawthorne) and in Owusu v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 38 (Owusu) sets out the
following principles governing the consideration of the best interests of the
children in the context of the application of section 25 of the Act:
·
The
decision to grant or refuse an exemption under section 25 of the Act is
highly discretionary which should not be disturbed unless the tribunal made
some error in principle or has exercised its discretion in a capricious or
vexatious manner. The Court will intervene, however, where “there is a failure
of ministerial delegates to consider and weigh implied limitations and/or
patently relevant factors”;
·
The
weighing of relevant factors is not the function of the reviewing Court;
·
The
obligation of an Immigration Officer to consider certain factors gives an applicant
no right to a particular result. The presence of a child and the consideration
of its best interests is an important factor but it is not determinative of the
issue of removal. The interests of the children are a factor that must be
examined with care and weighed with other factors such as public interest
factors. The children’s interests cannot be minimized;
·
A
consideration for an exemption is highly contextualized and fact specific. In
the case at hand, the Officer was not dealing with family separation since, if
removed, the entire family would travel to Sri Lanka.
[60]
I
reviewed the applicants’ submissions (Certified Tribunal Record, pages 55 to
57) in support of their application for permanent residence on H&C grounds.
Those submissions were sparse. They said they could not return to Sri Lanka to make an
application for permanent residence because they would be at risk of death or
torture. That submission has no substance in the light of the Officer’s finding
of slight risk of arrest and detention not amounting to persecution because
such detention would be temporary.
[61]
In
terms of the best interests of the children, the applicants did not raise any
hardship if returned to Colombo. They submitted that
two of their children were born in Canada and all their children
have lived a Canadian life style and are studying in Canada.
[62]
As
mandated by the Federal Court of Appeal in Owusu, in these
circumstances, the Officer cannot be faulted for not providing a more
intensive analysis of the best interests of the children. His analysis was
proportional to the applicants’ submissions which were considered and dealt
with. The Officer took into account the young age of the children and the
cohesiveness of the family unit to transition successfully in Sri Lanka. In the
circumstances, the Officer’s decision cannot be said to be unreasonable and
does not warrant my intervention.
[63]
In
this context, I refer to my colleague Justice de Montigny’s recent judgment in Barrak
et al v. the Minister of Citizenship and Immigration, 2008 FC 962 (Barrak)
where he wrote the following at paragraphs 28, 36 and 37:
28 An
applicant has the burden of adducing proof of any claim on which the H&C
application relies and makes a scant application at his or her own peril. An
officer is not obliged to gather evidence or make further inquiries but is
required to consider and decide on the evidence adduced before him: see
Owusu v. Canada (MCI), 2004 FCA 38, [2004] 2 F.C.R. 635 at para. 5; Selliah v.
Canada (MCI), 2004 FC 872, 256 F.T.R. 53 at paras. 21-22, affm'd 2005 FCA 160.
[Emphasis mine.]
…
36 Counsel
for the applicants also argued that the officer failed to engage in any
substantive analysis of these children's best interests. It is true that the
officer's reasons in that respect are rather sketchy, and consists in three
short paragraphs describing their ages and schooling. But in fairness, the
applicants presented little in the way of submissions or evidence to
demonstrate why unusual and undeserved or disproportionate hardship would
result if the children were to accompany their parents back to Lebanon.
37 In
light of the limited submissions, the officer's assessment of the children's
interests was entirely adequate. In particular, the officer noted the
children's limited attachment to Lebanon, their time in the West since 1994, and
their success in schooling, as well as the eldest child's recent marriage.
Having weighed the factors, the officer determined that they were insufficient
to demonstrate unusual and undeserved or disproportionate hardship. The officer
was not obliged to conduct elaborate assessments of matters where the
applicants themselves failed to.
[64]
Finally,
on my own motion, I examined whether the question the Officer had erred in
applying the wrong test in assessing hardship since the test to be applied in
the context of a PRRA is much more stricter than the one used for the purposes
of an H&C application (see Pinter v. Canada (Minister of Citizenship and
Immigration), 2005 FC 296).
[65]
I
examined the determination of the PRRA Officer in Barrak which led
Justice de Montigny to quash that decision. The determination made by the
Officer in the case before me reveals no such error.
[66]
For
these reasons, the applicants’ challenge in IMM-931-08 must be dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the applicants’
judicial review application in IMM-931-08 is dismissed. Similarly, the
applicants’ judicial review application in IMM-932-08 is also dismissed. No
certified question was proposed. A copy of these reasons and judgment are to be
placed on both Court files.
“François
Lemieux”
____________________________
Judge
ANNEX “A”
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Immigration
and Refugee Protection Act
(2001, c. 27)
Convention
refugee
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.
Person in need
of protection
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.
Person in need
of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
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Loi
sur l’immigration et la protection des réfugiés (2001, ch. 27)
Définition
de « réfugié »
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.
Personne
à protéger
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 menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
Personne
à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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