Date: 20080708
Docket: IMM-10-08
Citation: 2008 FC 843
Ottawa, Ontario, July 8,
2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
ABIRAMIE
RAMANATHAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
THE MINISTER
OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by Pre-Removal Risk
Assessment (PRRA) officer N. Sohal dated November 8, 2007, concluding that the
applicant would not be at risk of persecution if returned to Sri Lanka, her country
of citizenship.
FACTS
Background
[2]
The
applicant is a 31-year-old Sri Lankan citizen of Tamil descent. She arrived in Canada on May 15,
2000, having been sponsored for permanent residence by her then fiancée. However,
sometime after arriving, the applicant’s relationship broke down and her
fiancée’s family backed out of the arranged engagement.
[3]
The
applicant states that her failed engagement resulted in emotional devastation
and caused her to suffer a “severe breakdown,” wherein she experienced
depression and auditory hallucinations. As a result, the applicant saw a doctor
and was prescribed psychiatric medication, which she continues to take.
[4]
In
February 2003, a removal order was issued against the applicant because she
failed to comply with the terms of her application for permanent residence – i.e.,
she did not marry her sponsor. As a result of the removal order, the applicant was
convoked to a hearing before the Immigration Appeal Division of the Immigration
and Refugee Board (the Board), wherein she represented herself. In her
Affidavit, sworn January 31, 2007, the applicant states that she was suffering
from severe depression at the time, but did not alert the Board to this fact
because she felt ashamed by her condition. On March 9, 2004, the Board
dismissed her appeal. The applicant sought to have this decision judicially
reviewed, but her application for leave was dismissed.
[5]
Later
in 2004, the applicant obtained counsel and filed a PRRA application citing a
fear of returning to Sri Lanka because of increasing
hostilities between the government and the Liberation Tigers of Tamil Eelam
(LTTE). No submissions were made regarding the applicant’s mental state
because, as the applicant states, she did not disclose this issue to her
lawyer. On October 25, 2004, the applicant’s PRRA application was rejected.
The PRRA application
[6]
On
January 22, 2007, the applicant filed a second PRRA application, which was
completed with the assistance of the same counsel currently representing the
applicant before the Court. The basis of the application was the heightening
conflict between the LTTE and the Sri Lankan government, as well as the
applicant’s mental health issues. While the applicant was scheduled for removal
on February 12, 2007, an Enforcement Officer agreed to defer her removal until
such time as her PRRA submissions could be considered.
[7]
On
November 8, 2007, the PRRA officer concluded that the applicant would not be at
risk if returned to Sri Lanka. The PRRA officer’s analysis began with
recognition that the human rights situation in Sri Lanka was becoming
increasingly strained as a result of worsening relations between the government
and the LTTE. The PRRA officer’s analysis relied heavily on a document entitled
“Operational Guidance Note: Sri Lanka,” which was issued by the U.K. Home
Office on November 5, 2007, three days prior to the PRRA officer’s decision.
The Guidance Note, which itself relies on evidence collected by various human
rights organizations, characterizes the situation in the following terms:
Both Amnesty International (AI) and Human
Rights Watch (HRW) have highlighted the increase in large scale military
operations conducted by the Government and the LTTE and the worsening human
rights situation in the country. AI has reported that the range of people being
targeted appears to be expanding and that although most of those killed since
the LTTE split had clear links to either the LTTE or the Karuna faction, there
has been an increase in the number of civilians killed who have little or no
evident connection to armed activity. This reportedly includes journalists,
academics, teachers and farmers as well as former members of the Tamil armed
groups who have not been involved in armed activities for a long time. …
[8]
The
PRRA officer next addressed the applicant’s particular circumstances, stating
at page 6 of the decision:
With respect to the applicant’s
particular circumstances, I note that there is insufficient evidence before me
to indicate that the LTTE have ever had any particular interest in her or her
family members previously. There is little if any evidence to indicate that she
would fit the profile of an individual that would be targeted by the LTTE as
the documentary evidence shows those that … have been targeted have frequently
been those who are opposed to them.
[9]
With
respect to whether the applicant would be at risk of being targeted by the Sri
Lankan government upon her return to the country, the PRRA officer reviewed the
evidence contained in the Guidance Note, which states that while most returning
individuals are only briefly detained for questioning, those with noticeable
scars are more prone to rigorous questioning and potential ill-treatment.
Having reviewed the evidence, the PRRA officer concluded that since the
applicant provided little detail of any scars she may possess, she did not “fit
the profile of an individual who would be targeted by Sri Lankan authorities
upon a return to Sri Lanka.”
[10]
The
PRRA officer also considered whether the applicant would be at risk of
extortion for being “perceived as wealthy owing to her stay in Canada.” In this
regard, the PRRA officer considered the evidence filed by the applicant, namely
the United Nations High Commissioner for Refugees Position on the International
Protection Needs of Asylum-Seekers from Sri Lanka, dated
December 2006 (the UNHCR Position). After briefly reviewing the content of the
UNHCR Position, the PRRA officer stated at page 8:
I have taken into consideration the above
evidence relating to returning asylum seekers being targeted for extortion and
while I acknowledge that there exists a mere possibility, I am not satisfied
there exists more than a mere possibility of extortion. Indeed, the UNHCR
report referring to at least two incidences of extortion from immigration
officials shows that while it is a concern, it is not occurring with great
regularity.
[11]
Finally,
the PRRA officer considered whether the applicant would be at risk due to her
gender and alleged mental health condition. The PRRA officer held that such
risks would be significantly diminished by the fact that the applicant was
returning to a country where she had an “extensive family network” to provide
emotional support. With respect to the applicant’s mental health condition, the
PRRA officer again referenced her significant family support, but also noted
that she had filed “little medical evidence to indicate how a return to Sri Lanka would affect
her.”
[12]
Accordingly,
the PRRA officer concluded that returning to Sri Lanka would not
place the applicant at risk under either sections 96 or 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
[13]
By
letter dated November 27, 2007, the applicant was notified that a decision had
been made, and was asked to attend the PRRA office on December 18, 2007 to be
given the decision. In response, by letter dated December 17, 2007, the
applicant’s counsel requested an opportunity to file updated evidence
concerning conditions in Sri Lanka, since the original
submissions were almost a year old. On this basis, he enclosed a number of
updated news and human rights reports detailing “the continuing deterioration
of the human rights situation for Tamil civilians in Sri Lanka.”
The stay of removal
[14]
The
applicant was originally scheduled for removal from Canada on February
28, 2008. On February 25, 2008, Mr. Justice Mosely ordered a stay of that
deportation until such time as this application has been finally determined.
ISSUES
[15]
The
applicant raises two issues for consideration:
1. Did the PRRA
officer breach the rules of procedural fairness in rejecting the applicant’s
application; and
2. Was the PRRA
officer’s decision to deny the PRRA application unreasonable?
STANDARD OF REVIEW
[16]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J.
No. 9 (QL), the Supreme Court of Canada reconsidered the number and definitions
to be given to the various standards of review, as well as the analytical
process employed to determine the appropriate standard in a given situation. As
a result of the Court’s decision, it is clear that the standard of patent
unreasonableness has been eliminated, and that reviewing courts must focus on
only two standards of review, those of reasonableness and correctness. In Dunsmuir,
the Court also held that where the type of decision being reviewed has been
thoroughly assessed in the preceding jurisprudence, subsequent decisions may
rely on that standard.
[17]
The
first issue raised by the applicant concerns matters of natural justice and
procedural fairness. Such issues are not governed by the standard of review
analysis put forward by the Supreme Court in Dunsmuir. Rather, such matters
are questions of law subject to review on the standard of correctness. In the
event the PRRA officer breached the rules of natural justice and procedural
fairness, no deference is due and the decision will be set aside: Sketchley
v. Canada (Attorney
General),
2005 FCA 404, [2006] 3 F.C.R. 392.
[18]
The
second issue concerns the reasonableness of the PRRA officer’s decision and
whether the officer had proper regard to all of the evidence when reaching a
decision. It is clear as a result of Dunsmuir, above, that such factors
are to be reviewed on a standard of reasonableness: see Erdogu v. Canada
(Minister of Citizenship and Immigration), 2008 FC 407, [2008] F.C.J. No.
546 (QL) and Wa Kabongo v. Canada (Minister of Citizenship and Immigration),
2008 FC 348, [2008] F.C.J. No. 453 (QL).
ANALYSIS
Issue No. 1: Did the
PRRA officer breach the rules of procedural fairness in rejecting the
applicant’s application?
[19]
The
applicant argues that her right to procedural fairness was breached when the
PRRA officer relied on the U.K. Home Office Guidance Note without first
providing her with an opportunity to address the Guidance Note and its
application to her particular circumstances.
[20]
As
noted above, the Guidance Note was issued by the U.K. Home Office on November
5, 2007, three days before the PRRA officer rejected the applicant’s PRRA
application. Accordingly, it is clear that this document was not available when
the applicant filed her PRRA submissions in January 2007. Further, the record
shows that the PRRA officer’s consideration of the Guidance Note was not communicated
to the applicant prior to the decision.
[21]
In
general, immigration officers may consider evidence that was not normally
available at the time of the applicant’s submissions. However, where that
information evidences a change in the general country conditions that may
affect the disposition of a case, fairness dictates that such information be made
available to the applicant for comment. As the Federal Court of Appeal held in Mancia
v. Canada (Minister of
Citizenship and Immigration), [1998] 3 F.C. 461 (C.A.) at paragraphs 22
and 26:
¶
22 … where the immigration officer intends to rely on evidence which is not
normally found, or was not available at the time the applicant filed his
submissions, in documentation centres, fairness dictates that the applicant
be informed of any novel and significant information which evidences a change
in the general country conditions that may affect the disposition of the case.
[…]
¶ 26 … The fact that a document becomes
available after the filing of an applicant’s submissions by no means signifies
that it contains new information or that such information is relevant
information that will affect the decision. It is only, in my view, where an
immigration officer relies on a significant post-submission document which
evidences changes in the general country conditions that may affect the
decision, that the document must be communicated to that applicant.
[Emphasis added.]
[22]
In Sinnasamy
v. Canada (Minister of Citizenship and Immigration), 2008 FC 67, [2008]
F.C.J. No. 77 (QL), Mr. Justice de Montigny was faced with a similar situation
to the case at bar; namely, the applicant alleged that his right to procedural
fairness was breached when the PRRA officer considered the Home Office Guidance
Note without first providing him with an opportunity to comment on it. In that
case, the basis of the applicant’s argument centred on the fact that the
document was not contained in the Board’s national documentation package on Sri
Lanka and was not a recognized human rights report, but rather a policy
document for U.K. asylum officers providing recommendations on how to process claims
arising out of Sri Lanka.
[23]
In
his decision, Justice de Montigny considered the above-noted statements from
the Federal Court of Appeal in Mancia, above, and concluded at paragraph
39 that the PRRA officer was entitled to rely on the Guidance Note since it was
obtained from a reliable source and merely “confirms and collects” the evidence
available from other sources:
¶ 39 In the case at bar, I believe the
PRRA officer was entitled to rely on the UK Home Office Operational Guidance
Note for Sri Lanka, since this is a publicly available document from a reliable
and well-known website. The fact that the report is not contained in the
IRB reference material does not mean that it is not publicly available. While I
am not prepared to accept that every document available on the internet is “publicly
available” for the purpose of determining what fairness requires in the context
of a PRRA, since this would impose an insurmountable burden on the applicant as
virtually everything is nowadays accessible on line, I am of the view that the
specific document under challenge here could be consulted by the PRRA officer
without advising the applicant. In many respects, it merely confirms and
collects the evidence available from other sources. It does not reveal novel
and significant changes in the general country conditions, even if it is not
entirely parallel with the findings reported in the UNHCR document. …
[Emphasis added.]
It must be
noted, however, that while Justice de Montigny concluded that the PRRA officer’s
reliance on the Guidance Note did not breach the rules of procedural fairness,
the officer nevertheless erred in failing to consider the contradictory
findings of the UNHCR Position, which was relied on by the applicant.
[24]
In
the case at bar, the applicant does not dispute that the PRRA officer was
entitled to rely on the Guidance Note in considering the merits of her claim.
However, the applicant argues that the timing of the PRRA officer’s decision
mandated that she be provided with an opportunity to comment on the Guidance
Note before a decision was rendered.
[25]
In
reviewing the record, the Court finds that the PRRA officer’s decision was
issued seven days after the applicant voluntarily agreed to discontinue an
application for judicial review and stay motion regarding her removal from Canada, and three
days after the U.K. Home Office issued the Guidance Note relied on by the PRRA
officer. The Guidance Note rejected the UNHCR Position dated December 2006 and
was a significant and prejudicial development affecting the applicant’s case. I
agree that the PRRA officer had a duty to give the applicant an opportunity to
comment on the Guidance Note before rendering a decision.
Issue No. 2: Was
the PRRA officer’s decision to deny the PRRA application unreasonable?
[26]
The
applicant contends that even if no breach of procedural fairness occurred, the
PRRA officer nevertheless erred in rejecting the applicant’s application. The
basis of the applicant’s argument is that the PRRA officer misinterpreted and
otherwise failed to have proper regard for the evidence contained in the UNHCR
Position which, according to the applicant, sufficiently justifies her claim
for protection. The Court agrees.
[27]
In
the decision, the PRRA officer relied on an out-dated UNHCR position paper
entitled “Returns of Tamil Asylum Seekers with scars,” dated January 1, 2005,
which was referenced in the Home Office Guidance Note and stated that Tamils
with scars are at risk if deported. The officer’s error is ignoring or failing
to realize that this position paper was out of date, and had been superseded by
the more recent UNHCR Position dated December 2006, which stated that no Tamils
– regardless of whether they had scars – should be deported to Sri Lanka under the
current conditions. This statement applies to the applicant. The PRRA officer
should not have relied on the statement made in the January 2005 position paper
since it was out of date, and the information contained therein had changed.
[28]
As
noted above, the current UNHCR Position was issued in December 2006 and, like
the U.K. Home Office Guidance Note relied on by the PRRA officer, details the
deteriorating relationship between the Sri Lankan government and the LTTE, and
the effect that that deterioration has had on the international protection needs
of individuals seeking asylum. In addition to providing a general update on the
most recent developments, the UNHCR Position provides guidance on how to assess
claims for international protection arising from Sri Lanka. In relation
to claims by Tamil individuals from the North or East of Sri Lanka, the
document states at pages 12-13:
(i)
All asylum
claims from Tamils from the North or East should be favourably considered. In
relation to those individuals who are found to be targeted by the State, LTTE
or other non-state agents, they should be recognized as refugees under the
criteria of the 1951 Convention, unless the individual comes within the
exclusion criteria of the 1951 Convention.
[...]
[29]
In
the decision, the PRRA officer quoted this statement before considering the
applicant’s particular circumstances and whether she would be at risk if
returned to Sri
Lanka.
The applicant submits that the PRRA officer erred by misinterpreting this
statement to mean that asylum should only be granted where the claimant has suffered
past persecution at the hands of the state, the LTTE, or other non-state agents.
The PRRA officer’s decision fails to realize that the same UNHCR Position also
states that “[n]o Tamils from the North or East should be returned forcibly
until there is significant improvement in the security situation in Sri Lanka.” This would
apply to the applicant regardless of whether she has been persecuted in the
past. The PRRA officer unreasonably failed to consider the UNHCR
recommendation.
[30]
Accordingly,
for these reasons, this application is allowed, and the matter remitted to
another PRRA officer for redetermination. The parties and the Court agree that
the applicant may file updated submissions to the new PRRA officer within three
weeks of this Order.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
The
application for judicial review is allowed and the matter is remitted to a
different PRRA officer for redetermination after the applicant has filed
updated submissions in accordance with these Reasons.
“Michael
A. Kelen”
Email this Content