Date: 20001211
Docket: IMM-2941-99
BETWEEN:
SRIVATHY SIVAYOGAN
LAKSHMAN SIVAYOGAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Srivathy Sivayogan is a 46 year old Tamil woman from the north of Sri Lanka. Lakshman Sivayogan is her 12 year old son. They are citizens of Sri Lanka who were found not to be Convention refugees by the Convention Refugee Determination Division of the Immigration and Refugee Board in a decision dated November 19, 1997.
[2] On December 12, 1997, they applied for consideration under the Post-Determination Refugee Claimants in Canada class ("PDRCC"). Submissions were made on their behalf in writing on January 22, 1998. Sixteen months later, on May 27, 1999 a Post-Claim Determination Officer ("PCDO") concluded that the applicants were not members of the PDRCC class. These are my reasons for setting aside the officer's decision.
THE FACTS
[3] As noted above, submissions were made to the PCDO on the applicants' behalf in a letter dated January 22, 1998. The submissions noted that there had been no adverse credibility findings made by the Convention Refugee Determination Division, that Mrs. Sivayogan had been arrested in Colombo, and that Lakshman Sivayogan was at an age where he would be at risk. Detailed evidence was provided as to the then prevailing country conditions.
[4] In denying their application, the PCDO also considered two documents that post-dated the submissions made on the applicants' behalf: the U.S. Department of State, Sri Lanka Country Report on Human Rights Practices for 1998, released in February of 1999 ("U.S. DOS Report") and the document entitled Sri Lanka: Internal Flight Alternatives: An Update, produced by the Research Directorate Immigration and Refugee Board, Ottawa, dated October 1998 ("IRB Report").
[5] The PCDO found that the applicants were at risk in the north of Sri Lanka, but found that they had an internal flight alternative in Colombo. This finding was based on the PCDO's conclusions about the country conditions and on the inference of the PCDO that due to the fact that the applicants had been able to travel across the country and had been released from detention, they were not considered security threats and therefore would not be at risk.
THE ISSUE
[6] While the applicants argued that the appropriate standard of review was no longer patent unreasonableness, and that the decision of Mancia v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 461 (C.A.) is no longer good law, on my view of the record I have concluded that it is not necessary for me to decide those issues.
[7] In my view, by relying upon the U.S. Dos Report and the IRB Report, both of which post-dated the applicants' submissions, without providing the applicants with an opportunity to respond, the PCDO breached the duty of fairness owed to the applicants.
ANALYSIS
[8] In Mancia, supra, at paragraph 27 the Court of Appeal held that:
| [W]ith respect to documents relied upon from public sources in relation to general country conditions which became available and accessible after the filing of an applicant's submissions, fairness requires disclosure by the post claims determination officer where they are novel and significant and where they evidence changes in the general country conditions that may affect the decision. |
[9] Whether the failure of an officer to disclose a document breaches the duty of fairness is in every case a question of fact. Mancia requires that in circumstances such as those now before the Court, the decision of the PCDO must be reviewed to see if it was reached by reliance upon novel and significant information contained in documents available after the filing of submissions.
[10] The central findings made by the PCDO in the present case were that: (i) Colombo was still in a state of high security due to attacks by the Liberation Tigers of Tamil Eelam so that the applicants would be subject to identity and background checks_ and risk of arrest, which the government justified on security grounds but which the Tamils claimed was a form of harassment; (ii) with respect to the issue of harassment, in response to complaints of harassment, in July of 1998, the Sri Lankan government had created an anti-harassment committee to provide a 24-hour service to deal with complaints of harassment by elements in the security forces; (iii) documentary evidence was to the effect that torture victims were Tamils suspected of being insurgents or collaborators, but the applicants did not fit that profile; (iv) the government generally respected the human rights of its citizens in areas not affected by the insurgency; and (v) the female applicant had her national identity card and both applicants had their birth certificates.
[11] Documentary evidence created after the applicants' submissions were received apparently provided the basis for the first finding relating to detentions of Tamils in Colombo through 1998. The U.S. DOS Report stated as follows:
| Security forces continued to conduct mass detentions and arrests of young Tamils, both male and female. Major sweeps and arrests occurred in Colombo, the east, and on the Jaffna peninsula. Although exact numbers of arrests were impossible to determine, they reached into the thousands. Hundreds of Tamils at a time were picked up during police actions. Most were released after identity checks lasting several hours to several days. The Government justified the arrests on security grounds, but many Tamils claimed that the arrests were a form of harassment. In addition, those arrested, most of whom were innocent of any wrongdoing, were sometimes detained in prisons together with hardened criminals. Security force actions continued to result in other problems for Tamils. For example, following an attack by an LTTE suicide bomber near the air force headquarters in Colombo in February, security forces closed three rooming hotels, leaving hundreds of Tamils temporarily without lodging. |
[12] With respect to the issue of torture, and the conclusion of the PCDO that the documentary evidence was to the effect that torture victims were Tamils suspected of being LTTE insurgents or collaborators, the IRB Report seems to provide the basis for the conclusion that torture was used by the armed forces with two principal aims, the first to obtain information on insurgent groups and the second to intimidate the population.
[13] The PCDO's conclusion that the government generally respected the human rights of citizens in areas not affected by the insurgency, was also apparently based mainly on the U.S. DOS Report.
[14] These findings made by the PCDO are in accord with the overall picture of the human rights situation in Sri Lanka as it emanated from the country documentation that pre-dated the applicants' submissions. However, with respect to the remaining central findings made by the officer, my view is that those were based on, or may have been affected by, novel and significant information that evidenced a change in the country conditions.
[15] The establishment by the Sri Lankan government of the Anti-Harassment Committee in the summer of 1998, documented in the IRB Report, was a novel and significant development evidencing a change in country conditions relied upon by the PCDO.
[16] As to the conclusion that the adult applicant had her national identity card and both applicants had their birth certificates, the IRB Report noted that anyone born in the north, but particularly Tamils, were subjected to intense interrogations at security check points, where "Tamils born in the north or east are required to produce a police certificate". A second source was noted to confirm that Tamils were required to have a police permit before entering the city and that they were searched upon entry. This also formed novel and significant information that might have affected on the PCDO's decision.
[17] It follows, in my view, that matters central to the decision of the PCDO, taken from the documentation which post-dated the applicants' submissions, can fairly be characterized as novel and significant developments evidencing changes in country conditions which were particularly relevant to the applicants' submissions concerning the availability of an internal flight alternative in Colombo. The failure to advise and to provide the applicants with an opportunity to respond to that information constituted a breach of the duty of fairness.
[18] In the result, the decision of the PCDO dated May 27, 1999 is quashed and the matter is remitted for redetermination by a different PCDO officer.
[19] Counsel will have seven (7) days from the date of receipt of these reasons to propose any question for certification, and a further period of three (3) days in which to reply to any submission made by the party opposite as to certification. Thereafter, a formal judgment will issue quashing the decision of the PCDO.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
December 11, 2000