Docket: IMM-6935-14
Citation:
2015 FC 1405
Toronto, Ontario, December 21, 2015
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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GOWRY
SUBRAMANIAM
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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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JUDGMENT AND REASONS
I.
Overview
[1]
This is a judicial review under subsection 72(2)
of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act]
of a pre-removal risk assessment [PRRA] by a Senior Immigration Officer
[Officer] in which the Officer determined that the Applicant would not be
subject to risk of torture, be at risk of persecution, or face a risk to life
or risk of cruel and unusual punishment or treatment if removed to Sri Lanka,
her country of nationality. The decision is dated June 19, 2014 [Decision]. The
Applicant was scheduled to be removed on December 3, 2014 but successfully
sought a stay of removal, granted on November 28, 2014, in order to pursue this
judicial review.
II.
Facts
[2]
The Applicant is a 30-year old Tamil from
Northern Sri Lanka. She alleges that her brother was approached by both the
Eelam People’s Democratic Party [EPDP] and the Liberation Tamil Tigers of Eelam
[LTTE] for financial support and that he refused both. In late 2006, the EPDP
had him arrested by the Sri Lankan army. He was tortured and upon release fled
to Australia where he was accepted as a Convention refugee.
[3]
Once her brother fled, the Applicant alleges
that she took over his business and subsequently became a target of both the
EPDP and the army. She was regularly sexually harassed and assaulted from
January 2007 to December 2007, when she ceased business operations.
[4]
As the civil war in Sri Lanka escalated, the
Applicant states that she tried to avoid any contact with the army or the EPDP.
Even after the war ended, however, there were further abuses by both, including
an EPDP militant who stalked and threatened her.
[5]
On December 31, 2009, the Applicant alleges that
she was sexually assaulted by two soldiers as two other soldiers held her
parents at gunpoint. The day after the sexual assault, her parents tried to
visit her in the hospital and file a complaint but were threatened by members
of the EPDP.
[6]
The Applicant acquired a student visa for the
United Kingdom and she left in February 2010. On January 16, 2011, she traveled
to Toronto under her sister’s passport and claimed refugee protection the next
day.
[7]
On February 12, 2013, her claim for refugee
protection was rejected by the Refugee Protection Division [RPD] of the
Immigration Review Board. The RPD took issue with her credibility, finding that
there were fundamental differences between her Port of Entry allegations and
her Personal Information Form [PIF] narrative. In addition, it found that she
did not have a subjective fear of persecution given that she did not make an
asylum claim in the United Kingdom. Leave to judicially review that decision
was denied on July 8, 2013. The Applicant then filed an application for her
PRRA under subsection 112(1) of the Act on February 25, 2014.
III.
PRRA Decision
[8]
The Officer first reviewed the Applicant’s
submissions and found that she was relying on her PIF narrative, which
contained the same allegations set out in her rejected application to the RPD.
As such, those allegations did not constitute new evidence under subsection
113(a) of the Act. Specifically, with respect to new evidence, the Officer
concluded as follows:
Subsequent to the applicant’s RPD decision,
the PRRA submissions rely on the same allegations as were advanced before the
RPD. As this evidence was already advanced before the RPD, I am not satisfied
that it constitutes new evidence under section 113(a) of [the Act]. I note that
as stated in Kaybaki, the PRRA application cannot be allowed to become a
second refugee hearing. The PRRA process is to assess new risk developments
between the hearing and the removal date. (Certified Tribunal Record [CTR], pp 6-7)
[9]
The Officer then turned to the current country
conditions in Sri Lanka, reproducing in full the five-paragraph executive
summary of the 2013 US Department of State Country Report on Human Rights
Practices for Sri Lanka [the DOS Report]. In light of this excerpt, the Officer
concluded that:
[I]t is clear that conditions in Sri Lanka
are far from ideal; still, the country conditions are similar to what they were
at the time of the applicant’s refugee decision. Accordingly, I am not
satisfied that there is sufficient new evidence to show that the applicant
would face more than a mere possibility of persecution. In addition, I am not
satisfied that sufficient new evidence has been presented to show she is likely
to face a danger of torture, or a risk to life, or a risk of cruel and unusual
treatment or punishment in Sri Lanka. (CTR, p 8)
[10]
In evaluating country conditions in Sri Lanka, the
Officer did not explicitly discuss the Applicant’s submissions other than to
say that “[w]ith respect to documentary articles
presented by the applicant, I have considered those articles in my analysis of
the current country conditions” (CTR, p 7). Nor did the Officer mention
any other country condition documentation, though the UK Home Office
Operational Guidance Notes on Sri Lanka from July 2013 [the Home Office Notes]
are listed as “Sources Consulted” at the end of
the Decision.
IV.
Parties’ Positions
[11]
The parties agree that the applicable standard
of review is reasonableness, given that there were no errors of procedural
fairness. They are correct that, in the absence of procedural fairness
concerns, a PRRA is a highly fact-driven inquiry warranting the application of
the reasonableness standard of review (see for instance, Korkmaz v Canada
(Public Safety and Emergency Preparedness), 2015 FC 1124 at para 9; Raza
v Canada (Citizenship and Immigration), 2007 FCA 385 at para 3 [Raza]).
A reasonableness analysis requires that this Court give considerable deference
to the Decision. This Court may only interfere if it lacks justification,
transparency, intelligibility, and falls outside the range of possible,
acceptable outcomes, defensible in fact and in law (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47; Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 59).
[12]
This is where the parties’ agreement ends: the
Applicant contends that the Officer failed to properly consider the country
condition evidence (although concedes that no errors were made by the Officer
with respect to the analysis of her personal circumstances, such as those
relating to her PIF, which was included with her PRRA application). For this,
the Applicant relies on Cepeda-Gutierrez v Canada (Minister of Citizenship
and Immigration), [1998] FCJ No 1425 at para 17 [Cepeda-Gutierrez]:
[T]he
more important the evidence that is not mentioned specifically and analyzed in
the agency's reasons, the more willing a court may be to infer from the silence
that the agency made an erroneous finding of fact "without regard to the
evidence"…Thus, a blanket statement that the agency has considered all the
evidence will not suffice when the evidence omitted from any discussion in the
reasons appears squarely to contradict the agency's finding of fact.
[13]
The Applicant makes three arguments in support
of her contention that the Officer erred unreasonably in failing to properly
assess and consider this new evidence of risk. First, the Decision contains
little more than a ‘blanket statement’ that the
Officer had considered the Applicant’s submissions on country conditions; second,
those submissions, along with the documentation the Officer independently
consulted, contained new evidence that should have been considered; and third,
that new evidence, ignored by the Officer, contradicted the ultimate finding
that she faced less than a mere possibility of persecution.
[14]
The Respondent disagrees with the Applicant, submitting
that, per subsection 113(a) of the Act, PRRA Officers must limit their analysis
to “new” evidence – evidence that was either published
after the negative RPD decision was rendered (February 12, 2013) or that was
not reasonably available at the time of the rejection. The
Respondent argues that since the Applicant did not bring forward any “new” country condition evidence that differed
substantially from the country condition evidence before the RPD, this Officer acted
reasonably and consistently with Cepeda-Gutierrez, i.e., without needing
to refer to every piece of contrary evidence.
V.
Analysis
[15]
I agree with the Applicant that the Officer made
a reviewable error in failing to address certain key points which were material
to the Applicant’s profile. This new evidence contradicted key findings of fact
by the Officer, namely that the young female Tamils from the north would not be
at risk to the sexual assault that the Applicant claimed that she had already
been subject to in the past. This Court must assess the reasonableness of a
decision on the basis of what the decision-maker wrote, and if the decision-maker
is sparing in the reasons, without explicitly addressing evidence that runs directly
contrary to the conclusion, it is open to this Court to find the decision
unreasonable (Cepeda-Gutierrez at para 17).
[16]
The test to determine the newness of evidence
under subsection 113(a) of the Act is set out in Raza at para 13:
Newness: Is the evidence new in the sense
that it is capable of:
(a) proving the current state of affairs in
the country of removal or an event that occurred or a circumstance that arose after
the hearing in the RPD, or
(b) proving a fact that was unknown to the
refugee claimant at the time of the RPD hearing, or
(c) contradicting a finding of fact by the
RPD (including a credibility finding)?
If not, the evidence need not be considered.
[17]
“Newness”, then, refers not only to evidence that demonstrates a change in
country conditions since the RPD’s decision. Newness also refers to evidence
that was not available at the time of the RPD decision that confirms
allegations made before the RPD or that provides a more fulsome, detailed
picture of the circumstances in the country at issue. Several documents were
before the PRRA Officer which fit the parameters of “new
evidence”:
i.
a news article from “101
East”, a current affairs programme on Al-Jazeera, dated December 27,
2013 (CTR, pp 105-07);
ii.
a BBC News article dated November 9, 2013 (CTR,
pp 107-11);
iii.
The Home Office Notes (published July 2013) (CTR
pp 39-90); and
iv.
The DOS Report (published sometime after April
2013) (CTR, pp 11-38).
[18]
Of these, the Officer explicitly focused only on the DOS Report. What I find
particularly problematic is that the Officer excerpted the entire executive
summary of the DOS Report, foregoing any analysis of the details in its
significant body relating precisely to the particular fear raised by the
Applicant. There were specific sections of the DOS Report that addressed the
risks surrounding sexual assault of women fitting the Applicant’s profile:
i.
That there were a number of credible reports of
sexual violence against women, who did not lodge official complaints due to
fear of retaliation, in which the alleged perpetrators were armed forces
personnel, police officers, army deserters, or members of militant groups, and
that human rights activists frequently complain about police and security force
participation in acts of violence against women. (CTR, p 15).
ii.
That police recorded 900 incidents of rape
during the first six months of 2012, the most recent period for which data was
available, but that this number was an unreliable indicator of the degree of
this problem because many victims were unwilling to file reports (CTR, p 33).
[19]
The Officer concluded that the DOS Report
provided an unchanged country portrait to that which had been painted before
the RPD. I find that this conclusion was unreasonable in light of the actual
details of the DOS Report itself.
[20]
The disturbing new evidence of sexual assault
within the DOS Report before the PRRA Officer was buttressed by the new
evidence provided in the Home Office Notes,
issued in July 2013 (i.e., also after the RPD hearing, also raising “new” evidence). For example, the Home Office Notes
highlighted the risk of sexual violence by referring to a Human Rights Watch
report that was released on February 26, 2013 – shortly after the Applicant’s
RPD decision was rendered:
In the report “We will teach you a lesson: sexual
violence against Tamils by the Sri Lankan Security Forces”, February 2013,
Human Rights Watch stated [that] “[i]n March 2011, the report of the UN Secretary-General’s
Panel of Experts on Accountability in Sri Lanka noted “many indirect accounts
reported by women of sexual violence and rape by members of government forces
and their Tamils surrogate forces, during and in the aftermath of the final
phases of the armed conflict.” The panel added [that] “rapes of suspected LTTE
cadre are also reported to have occurred, when they were in the custody of the
Sri Lankan police (CID [Criminal Investigation Department] and TID [Terrorist Investigation
Department] or SLA [Sri Lankan Army])”. “Humanitarian workers present in
northern Sri Lanka during the final months of the conflict described widespread
rape of women by the Sri Lankan Army. A former UN field officer told Human
Rights Watch that “a large number of women fleeing from the conflict areas
during the peak of fighting were sexually assaulted”. As a general rule, cases
of sexual violence and rape by the security forces have been poorly
investigated or not pursued at all. Complaints of rape, like other complaints
of torture, are often not effectively dealt with by the police, magistrates, or
doctors. Weaknesses in the early stages of the criminal investigation process
have repeatedly contribution to the ultimate collapse of investigations of
alleged rapes and other acts of sexual violence”. (CTR, p 76)
[21]
Like the DOS Report, this new evidence supports the
Applicant’s claim that she may be at risk of sexual violence. But it was not
discussed in the Decision, even as it pointed strongly in the opposite
direction of the Officer’s finding. In reaching the conclusion that the
Applicant “would not face more than a mere possibility
of persecution”, the Officer failed to mention this new evidence,
instead relying on a cursory overview from one section of the DOS Report that
only touched briefly on the Applicant’s risk profile.
[22]
In my view, both the DOS Report and the Home
Office Notes constitute new evidence regarding the persecution which the
Applicant feared, namely sexual abuse against young unmarried Tamil women from
the North of Sri Lanka who may have been perceived to have ties with individuals
opposed to the government. The Applicant based her PRRA on being a woman who
fit this profile.
VI.
Conclusion
[23]
It is not the role of the Federal Court to
intervene in an officer’s PRRA decision and submit the conclusion that it feels
is correct. However, this Court must, with deference, look to the reasons
issued and the logic provided by the officer and determine whether the decision
is reasonable. In this case, the Decision lacked sufficient consideration of two
key documents which both shed new light on the Applicant’s profile. Given the
failure to address the new, compelling evidence in any meaningful way, the
Decision is unreasonable, and must be sent back for reconsideration by a
different officer.
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