Date: 20040908
Docket: IMM-5237-03
Citation: 2004 FC 1228
BETWEEN:
KANMANY RASIAH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
[1] This case is an example of the difficulty which arises from lengthy proceedings which result in removal. The applicant has been in Canada for more than six years since her refugee claim was denied. She is now 67 years old and is at the last stage of the removal process. While removal may be more difficult for her, there is not and never has been, any legal justification for her to remain in Canada.
[2] The applicant seeks judicial review of a Pre-Removal Risk Assessment Officer's (PRRA Officer's) determination that the applicant would not be subject to risk of persecution, torture, risk of life or risk of cruel and unusual treatment or punishment.
[3] The applicant raises two issues in this application:
1. That the PRRA Officer made a patently unreasonable finding of fact in finding that the applicant had an IFA in government controlled areas of Sri Lanka;
2. That the PRRA Officer breach the duty of fairness by making unexplained selective use of documentary evidence, failing to disclose extrinsic documentary evidence consulted and failed to provide the applicant with an opportunity to review the Pre-Removal Risk Assessment before it was issued.
BACKGROUND
[4] The applicant is now a 67 year old woman, a citizen of Sri Lanka and of Tamil descent. She arrived in Canada in September 1996, was denied refugee status on January 22, 1998 for which leave was denied in April 1999.
[5] Counsel advised that the reasons for her PRRA occurring in December 2002 (decision in March 2003) is that she had attempted every other relief available to her to stay in Canada, unsuccessfully.
[6] The PRRA Officer, in considering the events which precipitated her claim in Canada, found that the situation in Sri Lanka had improved since 1999 and that she had an IFA in government controlled areas of Sri Lanka.
[7] In making those findings the PRRA Officer cited the United Kingdom IND Country Assessment Report for Sri Lanka, October 2002.
[8] The PRRA Officer held that the applicant's fear of arrest is not supported by the documentary evidence and that all of the available documentary evidence indicates that the applicant would be safe in Sri Lanka now. He could not find sufficient evidence to support an allegation that elderly Tamils are at risk of being persecuted in Sri Lanka.
ANALYSIS
Finding of Fact - IFA
[9] While the applicant has other arguments on this point, she placed considerable emphasis on the finding by the PRRA Officer that she was from Jaffna when she was, in reality, from a city 50 miles away known as Kilinochchi. From this alleged "fatal flaw", the applicant concludes that a series of errors flawed resulting in the conclusion that she had an IFA in Sri Lanka.
[10] This was an error but it could be simply a typographical error. A review of the reasons shows that the PRRA Officer described her as coming from the Vanni area, an area controlled by the Tigers. Taken in context, this error is irrelevant to the conclusions reached. The IFA is based on other areas of Sri Lanka, not those areas under Tiger control and in the north.
[11] On this issue the applicant has not established a patently unreasonable finding of fact.
DUTY OF FAIRNESS
[12] The applicant complains that the PRRA Officer favoured the UK country report, did not explain the basis for this selectivity and ignored other evidence.
[13] While the PRRA Officer quotes a passage from the UK report, there is no evidence that he was selective. The PRRA Officer listed a number of other publications consulted, the very documents the applicant says were ignored. There is no requirement that the PRRA Officer quote from each publication or outline the contents of each.
[14] The applicant was unable to establish that the other documentary evidence painted a materially different picture of conditions in Sri Lanka. Each document, including the UK report, referred to positive and negative aspects of country conditions.
[15] There is no evidence to establish that the PRRA Officer ignored important documentary sources.
[16] The applicant complains that the PRRA Officer consulted extrinsic documentary evidence without her knowledge and without access to that evidence.
[17] The documents referred to are publicly available, were available at the time of the hearing, and would have been available to the applicant upon the exercise of some degree of initiative.
[18] The cases relied upon by the applicant in respect of impermissible use of intrinsic evidence relate to documentary evidence of a personal nature such as arrest warrants, documented threats or specific to the individual. In both Chen v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 193, 2002 FCT 266 and Mancia v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 461, the courts held that the duty of fairness is not breached by a failure to disclose publicly available documents relied on by a risk assessment officer.
[19] Finally, the applicant says that the duty of fairness was breached by the failure to afford the applicant an opportunity to review the assessment before it is finalized.
[20] The applicant was given an opportunity to review the report and to comment on "errors or omissions". This is not the same type of review that the applicant says should be available.
[21] I cannot find any requirement for a decision maker to seek pre-clearance review of the decision from a party. Bearing in mind the nature of the pre-removal assessment process, there is even less justification for such a procedure. This Court in Mia v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1150, [2001] F.C.J. No. 1584 (Mia) rejected that approach.
[22] I concur with the decision in Mia. An applicant has the right to make submissions and present evidence. If the decision is in error, the remedy lies in this Court.
[23] I cannot find that there has been any breach of the duty of fairness.
[24] The parties submit and I agree that there is no question to be certified.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5237-03
STYLE OF CAUSE: KANMANY RASIAH v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 17, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Phelan
DATED: September 8, 2004
APPEARANCES:
Mr. Jegan Mohan FOR THE APPLICANT
Ms. Marina Stefanovic FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mohan & Mohan
Toronto, Ontario FOR THE APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT