Docket: IMM-4598-15
Citation:
2016 FC 395
Ottawa, Ontario, April 8, 2016
PRESENT: The
Honourable Mr. Justice Annis
|
BETWEEN:
|
|
MAHINTHAN
SIVALINGAM
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA or the Act] challenging an immigration officer’s [the Officer]
decision refusing the Applicant’s Pre-Removal Risk Assessment [PRRA] by
concluding that he is not a person in need of protection pursuant to section 97
of the Act.
[2]
The Applicant, a citizen of Sri Lanka, arrived
in Canada on July 13, 2003. The Applicant’s father, who was granted refugee
status in Canada, sponsored the Applicant, the Applicant’s mother and siblings
to Canada. The Applicant has since resided in Canada.
[3]
The Applicant was the subject of numerous
convictions between 2007 and 2011. More specifically, the Applicant pled guilty
in June 2009 to charges of theft, possession, forgery and trafficking of credit
card pursuant to subsection 342(1) of the Criminal Code.
[4]
On September 14, 2014, as a result of his June
2009 conviction, the Applicant was found inadmissible to Canada for serious
criminality pursuant to paragraph 36(1)(a) of the Act. The Immigration
Division [ID] issued a removal Order against the Applicant.
[5]
On December 18, 2014, the Immigration Appeal
Division [IAD] refused the Applicant’s appeal of the ID’s removal Order. The
Federal Court also denied the Applicant’s leave for judicial review of the
IAD’s decision dated April 14, 2015.
[6]
The Applicant filed a PRRA application that was
limited to section 97 factors due to his inadmissibility. It was denied on
September 1, 2015.
[7]
The Applicant’s removal was scheduled for
October 21, 2015. However, on October 20, 2015, this Court granted the
Applicant a stay of removal pending the judicial review of his failed PRRA
application, which is the subject of this proceeding.
[8]
The Applicant raises two issues for the Court’s
consideration relating to the PRRA decision, both of which are subject to being
reviewed on a standard of reasonableness. First, he argues that the Officer failed
to assess the risks associated with his likely interrogation and detention upon
arriving in Sri Lanka, and second, the Officer failed to consider risk factors
associated with his profile as the son of someone who had been determined to be
a Convention refugee.
[9]
I consider first the second issue relating to
risk factors attached to the Applicant’s profile. Premised primarily on the
December 2012 UNHCR Eligibility Guidelines for Assessing the International
Protection Needs of Asylum-Seekers from Sri Lanka, the Officer found that as a
young Tamil male from the North, he did not present a profile history that
would warrant negative attention upon his return.
[10]
The Applicant nevertheless submitted that his
additional attributes as the son of a Convention refugee of Sri Lanka upon
whose status he had been granted permanent residency in Canada would raise
serious risks to his personal safety.
[11]
In this regard, the Court was referred to a
decision by my colleague Justice O’Reilly in the matter of Muthuthevar v
Canada (Minister of Citizenship and Immigration), 2015 FC 1, paras 17-19.
The case presented somewhat similar facts as in this matter, where the
applicant had been absent from Sri Lanka for a considerable period of time and where
his permanent resident status was based upon his father being determined to be
a Convention refugee. The father was granted asylum based on his fear of
persecution after being forced to assist the Liberation Tigers of Tamil Eelam [LTTE]
and subsequently being detained and tortured by the Sri Lankan army. The Court
found that the board committed a reviewable error by failing to consider
whether the applicant would now be suspected of having LTTE ties upon removal
to Sri Lanka due to his father’s past history and his being a failed asylum
seeker.
[12]
The Officer had considered the Applicant’s factual
situation relating to his father being a Convention refugee. The Officer noted
that, besides the statement in his counsel’s letter, there was “no transcript of that hearing and no
written reasons which detail the reasons for that positive [Convention refugee]
decision.” The Officer concluded that “[c]ounsel has provided no evidence
regarding any issues that the applicant’s father had in Sri Lanka with the LTTE
or the army which would cause the applicant to be at risk … [or] that the
military or paramilitary groups in Sri Lanka are aware of the father’s
background or that the father was granted refugee status in Canada.”
[13]
Based on the Applicant’s facility in leaving Sri
Lanka with all the proper travel documents and the absence of evidence
concerning the father’s background, the Officer found the Applicant’s statement,
that he would be persecuted upon his return as a family member of a Canadian
Convention refugee, to be speculative. I find no reviewable error arising from
the Officer’s analysis and conclusion in this regard, particularly given the
absence of any evidence regarding the father’s Convention refugee status.
[14]
With respect to the issue of the alleged error
by the Officer in failing to assess the risks associated with the interrogation
and detention, I similarly find no reviewable error requiring the Court’s
intervention.
[15]
The Officer found that the country condition
documentation with respect to the screening process for persons returning to
Sri Lanka was “mixed.” The Applicant pointed the Court to reports indicating
the prevalence of torture generally associated with interrogation and detention
by civil forces, in addition to concerns about the lack of transparency and
information with respect to these screening activities. However, the Officer
reviewed and reported in considerable detail on the screening processes,
including the negative reports of organizations such as the Law and Society
Trust of Colombo, as well as those prepared by the Immigration Refugee Board of
Canada and the Canadian High Commission, which tended to be less critical of
the risks associated with the screening process. Accordingly, I am not
satisfied that the Applicant has established that the Officer failed to
consider the risks attached to returning Tamil males from the North arising from
the screening process given his profile.
[16]
Moreover, I do not find that the cases cited by
the Applicant are of assistance to demonstrate the perils of the screening
process given the very different factual circumstances described therein. For
instance, Justice de Montigny in the matter of Sinnasamy v Canada (Minister
of Citizenship and Immigration), 2008 FC 67, set out principles in terms of
the requirement to consider the particular circumstances of the applicant when
being detained as a result of security measures implemented by the Sri Lankan
government for returnees. However, the underlying factual circumstances in that
matter concerned a 46 year old Tamil who was tortured on several occasions and
suffered human rights abuses at the hands of both the Sri Lankan army and the LTTE.
[17]
Similarly, Justice Diner’s decision in the
matter of Kanagarasa v Canada (Minister of Citizenship and Immigration),
2015 FC 145 is similarly distinguishable. The facts in that matter concerned a
returning applicant who had visible scarring and a history of detention, such
as was found to place him at risk of torture and mistreatment when undergoing Sri
Lanka’s re-entry screening process.
[18]
The Officer ultimately found that the
Applicant’s profile did not match any of those generally acknowledged to give rise
to heightened risk for returnees. This, in addition to the conclusions about
the speculative nature of the risk attached to the father’s Convention refugee
status, the Applicant’s lack of LTTE affiliation, the absence of any difficulty
he faced upon leaving Sri Lanka, and his being removed on the basis of serious criminality
in Canada as opposed to being a failed Convention refugee, I find reasonably supports
the Officer’s conclusion that the Applicant would not likely be subjected to
section 97 forms of risks upon his return to the country.
[19]
Accordingly, the application is dismissed, and
no question is certified for appeal.
Email this Content