Docket: IMM-228-14
Citation:
2015 FC 506
Ottawa, Ontario, April 21, 2015
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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PALARAJH
NANTHAPALAN
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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.
Introduction
[1]
This judicial review concerns a decision of an
Immigration Officer [Officer] at the Canadian High Commission in Sri Lanka
rejecting the Applicant’s permanent residence application.
II.
Background
[2]
The Applicant is a Tamil citizen of Sri Lanka
who claimed his government suspected him of being a member of LTTE at the same
time that the LTTE was targeting him for not joining them. He cited instances
of abuse while in detention and in other situations.
[3]
The Officer concluded that on balance, the
Applicant had not established a well-founded fear of persecution or that he had
been seriously and personally affected by civil war, armed conflict or a
massive violation of human rights. Therefore, the Officer was not satisfied
that there was a reasonable chance or grounds that the Applicant was a member
of the prescribed class consistent with s 147(a) and (b) of
the Immigration and Refugee Protection Regulations, SOR/2002-227.
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147. A foreign national is a member of
the country of asylum class if they have been determined by an officer to be
in need of resettlement because
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147.
Appartient à la catégorie de personnes de pays d’accueil l’étranger considéré
par un agent comme ayant besoin de se réinstaller en raison des circonstances
suivantes :
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(a) they are outside all of their
countries of nationality and habitual residence; and
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a) il
se trouve hors de tout pays dont il a la nationalité ou dans lequel il avait
sa résidence habituelle;
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(b) they have been, and continue to
be, seriously and personally affected by civil war, armed conflict or massive
violation of human rights in each of those countries.
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b) une guerre civile, un conflit armé ou une
violation massive des droits de la personne dans chacun des pays en cause ont
eu et continuent d’avoir des conséquences graves et personnelles pour lui.
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[4]
Turning to the Applicant’s present
circumstances, the Officer found that in light of the Officer’s knowledge of
current country conditions in Sri Lanka, he was not satisfied that the
Applicant was or continued to be seriously and personally affected as a result
of the civil war in Sri Lanka. The Officer made reference to two documents: UNHCR
Eligibility Guidelines for Assessing the International Protection Needs of
Asylum Seekers From Sri Lanka, 21 December 2012 [UNHCR Report] and UK Border
Agency Seekers From Sri Lanka OGN v14, July 2013 [UK Report].
[5]
In this judicial review, the Applicant has
raised that there was a breach of natural justice because the two documents
were not disclosed to him. The Applicant has challenged the reasonableness of
the decision because the Officer did not deal with the Applicant’s fear of
extortion.
III.
Analysis
[6]
The applicable standards of review are well
settled. With respect to procedural fairness, the standard is correctness (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339) and
with respect to the merits of the decision, the standard is reasonableness (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
[7]
In considering this matter as a whole, it is
important to bear in mind that the Applicant filed his application in 2009. It
is his obligation to keep it current and to have it reflect any changes in
country conditions which may be relevant (see Besadh v Canada (Citizenship
and Immigration), 2009 FC 680; Pizarro Gutierrez v Canada (Citizenship
and Immigration), 2013 FC 623, 434 FTR 69).
[8]
The Applicant’s procedural fairness issue
centres on the fact that neither the UNHCR Report nor the UK Report were
disclosed to him. The UK Report was issued a month after the Applicant’s interview
whereas the UNHCR Report was issued before the interview.
[9]
The relevant legal authority is Mancia v
Canada (Minister of Citizenship and Immigration), [1998] FCJ No 565, [1998]
3 FC 461, where this Court held that it is only when an officer relies on a
significant post submission document evidencing changes in general country
conditions that such document must be disclosed to an applicant.
22 These decisions are based, it
seems to me, on the two following propositions. First, an applicant is deemed to
know from his past experience with the refugee process what type of evidence of
general country conditions the immigration officer will be relying on and where
to find that evidence; consequently, fairness does not dictate that he be
informed of what is available to him in documentation centres. Secondly, 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 documents are in the public
domain. They are general by their very nature and are neutral in the sense that
they do not refer expressly to an applicant and that they are not prepared or
sought by the Department for the purposes of the proceeding at issue. They are
not part of a "case" against an applicant. They are available and
accessible, absent evidence to the contrary, through the files, indexes and
records found in Documentation Centres. They are generally prepared by reliable
sources. They can be repetitive, in the sense that they will often merely
repeat or confirm or express in different words general country conditions
evidenced in previously available documents. The fact that a document becomes
available after the filing of an applicant's submissions by no means signifies
that it contains new information nor 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.
[10]
While the Respondent relied on such cases as Stephenson
v Canada (Citizenship and Immigration), 2011 FC 932, and Shokohi v
Canada (Citizenship and Immigration), 2010 FC 443, 367 FTR 161, those are cases
where the documents at issue were publicly available for the applicant’s
hearing. They are distinguishable from this case in respect of the UK Report.
[11]
However, I do note that even though the
documents were not disclosed to the Applicant, he had the right to bring the
UNHCR Report to the attention of the Officer as late as the interview stage and
in respect of the UK Report issued one month after the interview, he could have
made post-interview submissions.
[12]
There is nothing to suggest that either document
contained novel and significant information which showed a change in country
conditions. As such, there was no obligation on the Officer to disclose. As the
Officer states, he made his determination of country conditions not just on
those documents but also on his knowledge gained from being in the country.
[13]
It is of concern to the Court that neither
document was contained in the Certified Tribunal Record. They should have been
and their absence could have, in a different case, led to a quashing of the decision.
However,
the ultimate burden rests with the Applicant. If those documents, which are
available, had evidence contrary to the Officer’s conclusion on general country
conditions, the Applicant was in a position to demonstrate that fact.
[14]
Therefore, on these facts, I cannot find a
breach of procedural fairness.
[15]
The second point raised by the Applicant is the
failure of the Officer to consider the Applicant’s fear of extortion should he
remain in the country. There is one small reference contained in his narrative
as to extortion. It was raised in the context of his fear of the army and
police (which was part of his fear of the LTTE and at the same time fear of the
Sri Lankan authorities).
[16]
The issue of extortion was not raised in the
more current interview and the narrative was a document which the Applicant
admitted contained inaccuracies.
[17]
The matter of extortion was not advanced by the
Applicant and the Officer cannot be criticized for not addressing an at best
tangential issue (Ranganathan v Canada (Minister of Citizenship and
Immigration) (C.A.), [2001] 2 FC 164).
[18]
Lastly, I cannot accept the Applicant’s oral submission
that the Officer (and this Court) should take into account that this was the
first immigration proceeding the Applicant had experienced and as such, his
failure to advance a ground should be excused. No such principle is applicable
here. Applicants are responsible for the conduct of their case.
IV.
Conclusion
[19]
Therefore, this judicial review will be
dismissed. There is no question for certification.
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