Date: 20081020
Docket: IMM-1282-08
Citation: 2008 FC 1170
OTTAWA, Ontario, October 20, 2008
PRESENT: The Honourable Louis S. Tannenbaum
BETWEEN:
DANIEL SUPPIAH, DILRY MASHUDA
DANIEL, PRAVIN JOASH DANIEL and
AVINASH AARON DANIEL
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicants are a family of four Tamil citizens of Sri Lanka. They lived
in Colombo where the
adult male applicant was employed by a company that supplied materials, including
body armour, to the Sri Lankan security forces. After allegedly being extorted
by Tamil militants and sought by the military, the family fled to Canada in 2001 and
sought protection as refugees.
[2]
The
Refugee Protection Division (RPD) of the Immigration and Refugee Board
dismissed their claim on January 22, 2003, finding them not to be credible in
their claims of persecution and fear. In November 2006, the applicants filed
for a pre-removal risk assessment (PRRA). It is the negative PRRA decision, dated
February 4, 2008, which is the subject of this judicial review application.
[3]
The
PRRA officer gave little weight to the new evidence submitted by the
applicants, as it was not from disinterested parties and because some of the described
events which transpired prior to their refugee hearing had not been adduced
before the RPD. The officer also assessed the country conditions documentation
and found that the applicants were not similarly situated to those described as
at risk, given that they were from Colombo and were found not to
be sought by Tamil militants or the Sri Lankan authorities. It was therefore
found that they were not personally at risk of persecution or cruel and unusual
punishment.
[4]
The
applicants submit that the officer erred:
a. by rejecting
the new evidence they put forward in support of their application; and
b. by failing to
provide a clear evidentiary basis for findings pursuant to section 97 of the Immigration
and Refugee Protection Act, 2001, c. 27 (IRPA).
[5]
The
assessment of evidence is the primary area of expertise of PRRA officers and
their decisions in that regard will only be set aside by this Court where
unreasonable. In assessing the reasonableness of factual findings, the Court
is guided by paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C.
1985, c. F-7, which permits the grant of relief where the decision is perverse,
capricious or not based on the evidence.
[6]
The
applicants note that a PRRA officer can only consider new evidence pursuant to
paragraph 113(a), that is, evidence which has arisen after or could not
reasonably have been provided for a claimant’s refugee hearing. They assert
that the PRRA officer considering their case unreasonably rejected the new,
additional and credible evidence they provided, thus stripping them of any
possibility of success for their application.
[7]
The
applicants further submit that the fact that evidence is not from disinterested
parties is not a clear basis for finding that it is not to be trusted. They
contend that the PRRA officer ought to have provided them with an interview on
the grounds that the findings of credibility were imported from the decision of
the RPD and that the officer appeared to find their documents fraudulent: Masongo
v. Canada (Minister of Citizenship and Immigration), 2008 FC 39.
[8]
The
respondent counters that the officer did not reject the new evidence the
applicants submitted, but reasonably assigned it little weight and the Court
should not interfere. He also notes that Masongo does not assist the
applicants as it stands for the proposition that documents purportedly issued
by a foreign government should be presumed valid absent evidence to the
contrary. The documents at issue here are derived from the applicants’ family,
not the Sri Lankan government.
[9]
The
respondent also submits that the PRRA officer committed no error in referring
to the credibility findings of the RPD without providing a hearing to the
applicants. The applicants failed to provide any evidence to rehabilitate
their credibility and the officer was entitled to find as she did.
[10]
The
applicants’ assertions do not withstand scrutiny. The PRRA officer is tasked
with the assessment of new evidence and the weight to give to it. Such
findings should not be set aside by the Court unless they are outside the range
of reasonable outcomes. In the instant case, the weight given to the new
evidence was reasonably open to the officer and the decision will stand.
[11]
Next,
the applicants submit that the PRRA officer failed to provide a clear
evidentiary basis to support the finding that the applicants did not face an
objective risk pursuant to section 97 of the IRPA. Indeed, they argue
that the officer failed to undertake a separate analysis of their section 97
risks by assessing those people who are similarly situated. They also contend
that it was an error to fail to assess the risks faced by the two minor
applicants.
[12]
The
respondent argues that a failure to demonstrate subjective fear can mean that a
fear of personal persecution for the purpose of section 97 of the IRPA
had also not been shown: Alas v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1441. He submits that the
officer found that the evidence showed that those Tamils objectively at risk
were not similarly situated to the applicants because they were from other
parts of the country or were of interest to either the Sri Lankan army or the
LTTE. He also notes that the risks to the children were not raised separately
by the applicants and therefore the PRRA officer did not err in failing to address
them.
[13]
Again,
I find no error in the officer’s decision. The purpose of the assessment under
section 97 is to provide protection to those who do not meet the definition of
a Convention refugee but who face a real risk of persecution based on their
personal circumstances. In assessing whether such protection is warranted, it
is incumbent on the PRRA officer to consider any persecution the applicants
themselves faced and also that faced by persons who are similarly situated and
can therefore stand in as representatives. Inherent in this concept is that
the selection of ‘persons similarly situated’ must be as close as possible to
the actual identity of the claimants, whether ethnically, geographically or in
other details.
[14]
The
officer’s consideration of the objective evidence shows due consideration for
the personal circumstances of the applicants and provides explanations for why
those Tamils who are objectively at risk in Sri Lanka differ in
their details. I find nothing unreasonable about that decision and will not
set it aside.
[15]
As
for the failure to consider the risks faced by the children, it is clear that
the PRRA officer is required to assess only those risks which are raised by the
applicants. In the case at bar, no risks were raised as being faced by the
children separate from those faced by their parents. It was therefore not an
error to address all claims simultaneously and come to what has already been
held to be a reasonable decision.
[16]
For
the foregoing reasons, this application is dismissed.
[17]
No
question of general importance was submitted for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed.
"Louis S. Tannenbaum"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1282-08
STYLE OF CAUSE: Daniel Suppiah
et al v. M.C.I.
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: September 16, 2008
REASONS FOR JUDGMENT
AND JUDGMENT: TANNENBAUM
D.J.
DATED: October 20, 2008
APPEARANCES:
|
Mr. Robert Blanshay
|
FOR THE APPLICANT
|
|
Mr. David Knapp
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Robert I. Blanshay
Canadian Immigration Lawyers
|
FOR THE APPLICANT
|
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
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