Date:
20130227
Docket:
IMM-2994-11
Citation:
2013 FC 199
Ottawa, Ontario,
February 27, 2013
PRESENT: The
Honourable Mr. Justice Mandamin
BETWEEN:
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LATHEEPAN JEYALOLIPAVAN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Mr.
Latheepan Jeyalolipavan applies for judicial review of the decision of an
Immigration Counsellor dated February 3, 2011 refusing his application for
permanent residence because the Officer was not satisfied the applicant was not
inadmissible to Canada;
[2]
For
reasons that follow I am granting the application for judicial review.
Facts
[3]
The
applicant is a young Tamil male from Jaffna, Sri Lanka. He was left was left
behind when his family fled Sri Lanka. His parents were accepted as refugees by
the Refugee Protection Division of the Immigration Refugee Board on December
17, 2007.
[4]
The
applicant’s parents applied for permanent resident status on March 4, 2008.
They included the applicant as a family member in their application. The Case
Processing Centre in Vegreville requested the Canadian High Commission
Immigration Section [CHC] in Colombo, Sri Lanka to verify the relationship and
initiate appropriate checks for the applicant. On March 23, 2008 the CHC
requested the applicant to complete forms including an application for
permanent residence in Canada.
[5]
The
applicant completed the application for permanent residence in Canada on July 8, 2008. The CAIPS notes indicate the applicant did not have an agent, was
19 years of age and was not fluent in English.
[6]
On
April 6, 2009, the CHC wrote to the applicant requesting further information
including the Personal Information Form (PIF) of his father. The applicant
provided a response indicating the “personal information from my sponsor, i.e.
father attached herewith”. The CAIPS notes make note of documents received, but
not the PIF. On April 9, 2009 the applicant was contacted and the requested PIF
and narrative was subsequently provided.
[7]
The
father’s PIF is very clear and precise. It documents two arrests of himself and
his son, the applicant, on April 22, 2006 and June 5, 2006 by the EPDP cadres
and military. The father was released on both occasions but he had to pay a
ransom for the applicant’s release. The applicant was then living in the family
home. The relevant part of the father’s narrative states:
12.
I
was in a very dangerous situation. I could not live in Manipay and was not able
to move to another place. My greatest concern was my son’s safety. I could not
make any arrangements for his safe residence.
13.
On
April 22, 2006 a group of EPDP cadres with military persons raided my house in
the morning and arrested my son. Immediately after the arrest I visited the
EPDP camp and subsequently they detained and questioned me too. I was not
allowed to see my son but was demanded to pay 100,000.00 rupees for the release
of my son. In the evening they allowed me to go home with the condition that I
provide them the ransom.
14.
The
next day I went to their camp with 50,000.00 rupees and promised them of
providing the balance in two weeks time. Thus they released my son. In two
weeks time I paid them the balance to prevent more problems. At this point I
believed that I would not face any further problems from them. Still I
considered leaving Manipay. I knew that killings by the security forces and
paramilitary groups were increasing day by day. A program of killing at least
five civilians in Jaffna was undergoing. Disappearances after arrest
heightened. I thought about leaving the Qatar while settling my son and wife
somewhere else.
15.
The
incident on June 5, 2006 brought an end to all my preparations. The security
forces and EPDP cadres raided my house on that night and arrested both my son
and me. They released me the next day on condition that I should pay them a sum
of 500,000.00 rupees to secure my son’s release.
16.
The
same night they raided my house for the second time and took my passport with
them saying that they had come to know about my arrangements to go abroad. I
had to make very serious decisions at this point. For the next three days I
visited the camp for about five times and offered to pay them 50,000.00 rupees
and begged to release my son. Finally they agreed to release for a sum of
100,000.00 and demanded 100,000.00 rupees more to return my passport. I paid
100,000.00 rupees and secured my sons release first. I assured them of paying
the rest within one month. But within that period I made arrangement for our
travel to Colombo.
17.
I
feared that we would be caught on our way if all of us leave the house
together. So I sent my wife to her relative’s house the previous day. The next
day, on June 27, 2006, I sent my son to the same house in school uniform in the
morning and finally I followed them and left to Colombo together.
18.
In
Colombo I stayed at Island Lodge where I used to stay and contacted the travel
agent who made arrangements for my travel to Canada. Even though we wanted to
leave Sri Lanka together the travel agent could not make such arrangements. While
he sent me first he promised to send my wife and son shortly. He understood
that I was concerned about the safety of my wife and son in Colombo and said
that he would send them very soon or take them to a safe country otherwise.
[8]
On
June 2, 2009, with the requested PIF in hand, the reviewing officer noted the
applicant appeared to have been detained and expressed security concerns.
[9]
On
July 9, 2009 the CAIPS notes indicated page 1 and 2 missing from schedule 1.
They appear to have been located at a later time. On July 15, 2009, a new
schedule 1 is sent to the applicant for completion. Letters also were sent to
the applicant requesting further information. On September 13, 2010 the CHC
wrote:
1. Why have you not
returned the schedule 1 form mailed to you on 15/07/09?
2. Why have
you not responded to our request of 29/01/10 requesting your O levels result
sheet and proof of post secondary education?
In order to continue processing
your file, please complete your personal history section from the time you were
18 to date leaving no time unaccounted for. Fill in your address history from
birth. We also require your O level results and proof of post secondary
education.
3. Where have
you lived since both your parents left the country? Who has been responsible for
your care?
4. Outline the
problems your parents faced that caused them to flee Sri Lanka and claim
refugee status in Canada. Please include how you were affected by these
problems.
5. Have you
ever been arrested by any force? If so please give details.
[10]
As
an aside, I must note some imprecision in the questions asked. The applicant is
asked for both personal history since 18 and address history since birth. He is
asked about his parents’ problems that caused them to flee and claim refugee
status in Canada (the applicant having been left behind in Sri Lanka) and then asked how he was affected by these problems. It seems to me the
questions may require answers beyond the applicant’s knowledge.
[11]
On
being advised of the CHC letter by his parent’s legal counsel in Canada, the applicant responded on December 21, 2010. He explained he had not received the
earlier letters. He answered the questions. He provided a second schedule 1. He
provided education documents. He described his history after his parents’ departure
taking up from his father’s PIF narrative. (His father described leaving the
son with a travel agent.) The applicant’s narrative continues from the time he
stayed with the travel agent after his parent’s departure. The applicant
referred the CHC to his parent’s PIF to summarize the problems faced by his
parents and the applicant prior to their departure. He described the two times
he was arrested with his father as chronicled in the father’s PIF and referred
to brief detainments by security during and after his parents departure. In his
response he writes:
3.
History
after parents’ departure:
after my parents’ departure from Sri Lanka, I stayed with travel agent for few
weeks time. As I was alone in Colombo, and the conditions were not conducive
for my stay, my travel agent feared that I could be arrested by the security
forces in Colombo and sent me to Vavuniya where I stayed with my paternal uncle
Umapathysivam Apputhurai. He took care of me during my stay in Vavuniya. As
security conditions worsened in Vavuniya, where indiscriminate killing and
abductions increased my relatives decided to send me back to Colombo where the
situation was comparatively safer than Vavuniya. When I returned to Colombo my aunt (father’s sister) Raveenthirarani Sothiraja took care of me in Colombo. Now I am under the care of Raveenthirarani Sothirajah.
4.
Reasons
for parents’ departure:
Please find enclosed my parents’ Personal Information Forms submitted to the
Immigration and Refugee Board of Canada. The forms and narratives summarize the
problems faced by my parents and me prior to their departure. Kindly refer to
the narrative of the Personal Information Form.
5.
Arrest
and detention:
As a young Tamil male from Jaffna, I was arrested on two occasions in addition
to numerous brief detentions by the security forces and paramilitary groups
during and after my parents’ departure from Sri Lanka. The arrests took place
in Jaffna during my stay in Manipay, Jaffna.
First arrest: The first arrest took place on or
around April 22, 2006 subsequent to my sister’s departure to Canada to join her husband.
Second arrest: The second arrest also took place on
or around June 05, 2006 at my house in Manipay, Jaffna.
[12]
The
Immigration Officer conducted a review of the application on December 30, 2010
noting the applicant’s reply. The Officer questioned the applicant’s change in
his Schedule 1 form from no arrests or detentions to answering about being
detained by security forces and EPDP members. The counsellor picks at dates in
the applicant’s personal chronology and education record. He questions the
applicant’s provision of his parent’s PIF to describe their problems instead of
describing those problems himself. The Officer makes much of the applicant’s
failure to declare the arrests in the initial application form.
[13]
The
file was sent on for review. The Officer reviewing the file indicated some
minor confusion was understandable but decides the applicant has not shown he
is inadmissible because he had changed his Schedule 1 declaration and did not seamlessly
clear up all confusion.
Legislation
[14]
The
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) provides:
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11.
(1) A foreign national must, before entering Canada, apply to an officer for
a visa or for any other document required by the regulations. The visa or
document may be issued if, following an examination, the officer is satisfied
that the foreign national is not inadmissible and meets the requirements of
this Act.
(2)
The officer may not issue a visa or other document to a foreign national
whose sponsor does not meet the sponsorship requirements of this Act.
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11.
(1) L’étranger doit, préalablement à son entrée au Canada, demander à l’agent
les visa et autres documents requis par règlement. L’agent peut les délivrer
sur preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de
territoire et se conforme à la présente loi.
(2)
Ils ne peuvent être délivrés à l’étranger dont le répondant ne se conforme
pas aux exigences applicables au parrainage.
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Standard of
Review
[15]
The
Supreme Court of Canada has held that there are only two standards of review:
correctness for questions of law and reasonableness involving questions of
mixed fact and law and fact. The Supreme Court has also held that where the
standard of review has been previously determined, a standard of review
analysis need not be repeated. Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 [Dunsmuir].
[16]
The
Federal Court of Appeal has stated that decisions of immigration officers are
discretionary decisions based on factual assessments. Jang v Canada (Minister of Citizenship & Immigration), 2001 FCA 312, 278 NR 172 at para
12. Judicial deference to the decision is appropriate where the decision making
process demonstrates justification, transparency and intelligibility and the
decision falls within a range of possible, acceptable outcomes defensible on
the facts and in law.
Analysis
[17]
The
onus is on the applicant to provide the necessary information to satisfy the
Officer that he is not inadmissible. This is a statutory requirement as per s.
11(1) of IRPA. To do this, the applicant was asked to provide specific
information. This included information on the applicant’s personal history from
the age of 18, documentation to substantiate his education claims, reasons for
his parents’ fleeing to Canada and details of whether the applicant had been
arrested by any force.
[18]
It
seems to me the most salient aspect of this application is the security issue.
This was identified early and is most crucial in regards to the question of
whether the applicant is not inadmissible.
[19]
On
first impression, it would appear that my decision in Sinnathamby v Canada (Citizenship and Immigration), 2011 FC 1421 [Sinnathamby] would apply and
be decisive in this matter. In that case, the principal applicant failed to
disclose his arrest and interrogation by the Sri Lankan navy, a fact which was
revealed by the provision of his son’s PIF and his later correction. There I
noted the immigration officer was tasked with weighing the evidence submitted
by the applicants and coming to a reasonable determination based on the
evidence. In that case I found the officer’s decision to be reasonable.
[20]
Generally,
applicants must provide full disclosure in their application for permanent
resident status satisfactory to the reviewing immigration officer who is
entitled to deference on his or her assessment. In Asuncion v Canada (Minister of Citizenship & Immigration), 2005 FC 1002 Justice Rouleau wrote:
18 Kelen J. in Guzman (supra) determined
after relying on Jafari v. Canada (Minister of Employment & Immigration),
[1995] 2 F.C. 595 (Fed. C.A.), a decision where Strayer J. wrote that he was
satisfied that paragraph 117(9)(d) of the Regulations was properly
enunciated with the administration of Canada's immigration law; that it is
reasonable that immigration law would require an applicant for permanent
residence to make full disclosure.
However, exceptions do arise and I
find this to be the case here.
[21]
The
difference between that case and this is that the principal applicant in Sinnathamby
was a mature adult who had been arrested and interrogated by the Sri Lankan
navy but later released on a bribe. The officer understood the principal
applicant could communicate in English. The applicant in this case was a teenager
twice detained and held for ransom. At the time of his initial application, he
was 19, unrepresented, had been left behind by his parents and, based on the
CHC’s presumably knowledgeable observation, not fluent in English.
[22]
The
Immigration Officer emphatically states in the final assessment:
While I can understand some minor confusion in
presenting a complicated history, our questions are clear. The Dependent is
not a child, he is 22 years old with a reasonable education. I note he engaged
a Canadian lawyer to help him with his application in Dec. 2009. Since that
time, I am left with more confusion regarding his background. … He now
declares to us he has been arrested and detained multiple times in direct
contradiction to of earlier declarations. I simply cannot see how this
applicant has discharged his statutory duty to show he is not inadmissible.
[emphasis added]
[23]
The
difficulty with the above summation is that, at the time of the earlier first
declaration, the applicant was not 22, was not represented by any agent let
alone a lawyer, had been left behind by his parents and was acknowledged by CHC
to not be fluent in English. The Officer does not assess whether the applicant
as of the time of the first declaration was mature and knowledgeable or, as
young men may on occasion be, somewhat oblivious to directions given.
[24]
Moreover,
the applicant had early on in the process provided his father’s PIF which
precisely describes the same two detentions he listed in the subsequent
application form. The Officer’s final review never referred to the applicant’s
provision of the PIF narrative which clearly sets out the applicant’s two
detentions although the CAIPS notes disclose the information was available
early on.
[25]
In
Khan v Canada (Citizenship and Immigration), 2008 FC 512 at paragraph
25, Justice O’Keefe wrote:
Paragraph 40(1)(a) is written very broadly in that
it applies to any misrepresentation, whether direct or indirect, relating to
a relevant matter that induces or could induce an error in the administration
of the Act. I am of the opinion that this Court must respect the wording of
the Act and give it the broad interpretation its wording demands. There is
nothing in the wording of the paragraph indicating that it should not apply to
a situation where a misrepresentation is adopted, but clarified prior to a
decision being rendered.
Given that the Immigration
Officer’s main concern is that the applicant may be a security threat, it seems
less relevant that he did not disclose his being held for ransom at the outset.
[26]
The
use by the Officer of s.11 as a basis for a negative decision is problematic if
it is left to a merely subjective assessment. To be reasonable, the Officer
must give reasons that are in accord with the information before the Officer
and have relevance to the decision the Officer must make.
[27]
The
Immigration Officer did not turn his mind to whether the applicant’s failure to
initially declare the two detentions is material to the question of security or
inadmissibility. There is no suggestion the father’s PIF does not accurately
describe the circumstances of their detentions especially given the applicant’s
parents were accepted in Canada as refugees. The Sri Lankan police security
report indicates the applicant has not come to their attention. How is the
applicant’s detainment for ransom relevant to the security concern first
raised?
[28]
In
Wang v Canada (MCI), 2005 FC 1059 at paragraph 57, Justice O’Keefe
considered the clause-by-clause analysis of Bill C-11 (now IRPA)
document which states:
This section is similar to provisions of the current
act concerning misrepresentation by either permanent or temporary residents but
modifies those provisions to enhance enforcement tools designed to eliminate
abuse.
[emphasis added]
In my view, the applicant was not
attempting to abuse Canadian Immigration procedures.
[29]
The
Officer refers to other confusion but acknowledges some confusion was
understandable.
[30]
Given
that the Officer harps on the initial failure by the applicant to declare the
two detentions without assessing the applicant’s circumstances when the
omission first occurred, I cannot find the Officer’s assessment to be
reasonable. Otherwise, any omission in an initial application would qualify as
abuse as referred to in Wang, above. In my view, the Court has to
consider whether the Officer assessed the circumstances of the omission and its
materiality of that information.
[31]
The
applicant has provided information about his arrests and that information is
not contradicted in any way by other evidence. The Officer erred in relying on
the information about the arrests in coming to the refusal decision. The
Officer’s use of the applicant’s provision of unchallenged information of the
arrests as part of the reasons for refusal is unreasonable.
[32]
The
applicant submitted questions for certification which the respondent opposes. I
consider the issue in this matter to be fact related and not of broad
significance or general application and I decline to certify any question.
[33]
The
application for judicial review is granted. The matter is to be referred back
for re-determination by a different immigration officer and CHC counsellor and
the applicant is to provide such further information as may be required.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
application for judicial review is granted.
2. The
matter is to be referred back for re-determination by different immigration
officers and the applicant is to provide such further information as may be
required.
3. No
general question of importance is certified.
“Leonard S. Mandamin”
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