BETWEEN:
SITHAMPARAPILLAI THARMASEELAN
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
[1] Sithamparapillai Tharmaseelan (the "Applicant") is a 51 year old married Tamil man from Sri Lanka who has made unsuccessful refugee claims in the United Kingdom and in Canada. In this application for judicial review he moved to quash a decision of an immigration officer (the "Officer") dated May 28, 2002 (the "Decision") which had denied him permission to apply for permanent residence from within Canada on Humanitarian and Compassionate ("H & C") grounds pursuant to subsection 114(2) of the Immigration Act, R.S.C., 1985, c. 1-2 (the "Act").
The Relevant Facts
[2] The Post Claims Determination Officer (the "PCDO") prepared a negative Risk Opinion dated February 20, 2002 for the Applicant's H & C case (the "Risk Opinion"). On the same date, the Risk Opinion was sent to the Applicant's counsel for comment.
[3] By letter dated March 5, 2002, 11 pages of comments on the Risk Opinion ("Counsel's Comments") were provided by the Applicant's counsel. Of particular note, was counsel's criticism that the PCDO had apparently disregarded an important item of correspondence which had been in the material before her when she prepared the Risk Opinion. It was a letter dated July 15, 1999 from Mr. Saravana Navaratnam (the "Lawyer's Letter"). The Lawyer's Letter indicated that Mr. Navaratnam had known the Applicant for many years and had personal knowledge of some of the experiences in Sri Lanka which had compelled the Applicant to leave that country. Mr. Navaratnam noted that a man called Mahathaya was once the deputy leader of the LTTE but that he had been executed by the LTTE leader because it was believed that he had colluded with the Indian Army. This was relevant because Mahathaya's widow and the Applicant's wife are said to be sisters.
[4] The Lawyer's Letter also referred to three articles in the Sri Lanka Monitor which documented instances of detentions and murders faced by Tamil's returning to Colombo in the period from December 1998 to February 1999 and Mr. Navaratnam concluded that the Applicant's safety and security would be threatened if he were to return to Sri Lanka.
[5] After the Officer received Counsel's Comments, she sent them to the PCDO who had prepared the Risk Opinion. In reply, the Officer received a memorandum from the PCDO dated March 13, 2002 (the "Reply Memorandum").
[6] The Reply Memorandum indicated that the PCDO had considered Counsel's Comments but that the negative Risk Opinion was maintained. The Reply Memorandum further indicated that the PCDO had considered the Lawyer's Letter when she prepared the Risk Opinion but had not accepted it as objective evidence of the fact that the Applicant's wife and Mahathaya's widow were sisters.
[7] In her Reply Memorandum, the PCDO mentioned IRB Response to Information Request #LKA 37900 (the "Response") which was dated December 10, 2001. It had been listed as one of the items of source material in the Risk Opinion. She also described information which had corroborated the Response and which had been obtained from interviews conducted in early October 2001 with the director of the Criminal Investigation Department of the Sri Lankan police and with a Magistrate. I have concluded that, because these interviews were not listed separately as source materials in the Risk Opinion, they formed part of the Response. Both men who were interviewed indicated that the Applicant would not face any serious consequences if he returned to Sri Lanka using his valid Sri Lankan passport (the "Interview Conclusion").
The Issues
[8] While a number of issues were raised, I will deal only with those which, in my view, could arguably result in the Applicant's success on this application.
They are:
1. Was the Officer obliged to follow up the status of the Applicant's son's Canadian refugee claim?
2. Was the Respondent obliged to disclose to the Applicant the PCDO's Reply Memorandum?
3. Was the PCDO required to give more comprehensive reasons for her rejection of the Lawyer's Letter?
The Applicant's Son
[9] The Applicant argued that the Officer was aware of the son's Canadian refugee claim and obviously considered its status of some importance because she took the trouble to try to locate the son's name on the computer. However, when she did not find it using the Applicant's surname, she allegedly erred in that she made no further effort to determine the son's status. For example, she did not call the Applicant's counsel to obtain the son's file number.
[10] The Applicant further submits that the error is material because, had she known that the son was about to be landed and in a position to sponsor his father, the Officer might have decided to grant the Applicant's H & C application because the Applicant would eventually be landed in Canada in any event.
[11] In my view, the Officer did not err. It cannot be the case that Immigration Officers who are under no obligation to interview H & C applicants are under an obligation to take the initiative and update the facts which might support an applicant's H & C application. If the Applicant in this case or his counsel had thought that the son's successful refugee claim was relevant to the Applicant's H & C application, it was their obligation to bring the new information to the attention of the Officer.
The Reply Memorandum
[12] Although the Reply Memorandum was not written in the form used for Risk Opinions, the Applicant said that, in substance, it was a fresh decision which raised new matters. In particular, the Applicant said that the Interview Conclusion was unreliable because it came from state sources, that it was not specifically mentioned in the Risk Opinion and that fairness and the principles of natural justice required that the applicant be given a copy of the Reply Memorandum and a chance to respond.
[13] The Respondent, on the other hand, characterized the Reply Memorandum as nothing more than a thoughtful response to Counsel's Comments and an update on the recent Peace Accord. He said that the duty of disclosure cannot be open ended in the sense that it extends to PCDO's replies to comments submitted by counsel on risk opinions
[14] In my view, the Reply Memorandum was not a fresh risk assessment. It is clear from the way the PCDO phrased the document, that the only matter which she had not previously considered was the recent Peace Accord. It is also apparent from her description of the Accord that many of its provisions had not yet been implemented. In these circumstances, it is not reasonable to conclude that the PCDO relied on the fledgling Peace Accord to support her Risk Opinion. The Reply Memorandum was simply a response to Counsel's comments and an update on widely publicized events in Sri Lanka. As such, there was no need for its disclosure to counsel for the Applicant.
Reasons for dismissing the Lawyer's Letter
[15] In the Risk Opinion, the Lawyer's Letter was not specifically mentioned although, according to Counsel's Comments, it was before the PCDO. The Risk Opinion did, however, deal with the subject matter of the letter in the following passage:
While the applicant alleges to be related to the previous deputy leader of the LTTE, Mahathaya, (also known as Mahendrarajah) there is insufficient objective documentation to establish this connection. The applicant's spouse and the previous LTTE deputy leader Mahathaya's spouse are allegedly sisters. Documentary evidence confirms the execution of Mahathaya for conspiring against LTTE leader Prabakaran. However, there is insufficient compelling evidence to conclude that neither the LTTE nor the Government authorities are interested in the applicant's whereabouts or in causing him harm. This notion is supported by the continuing residence of the applicant's spouse and children in northern Sri Lanka without difficulties arising from the alleged connection to Mahathaya. Moreover, the source that emanates the applicant's risk no longer exists, therefore in my opinion, indicating a subjective rather than an objective basis for the applicant's continued fear due to his alleged family connection to Mahathaya.
[16] Counsel's Comments described the Lawyer's Letter as credible corroboration, inter alia, of the fact that the Applicant's wife and the widow of Mahathaya are sisters.
[17] In the Reply Memorandum, the PCDO's noted that:
Consequently a letter from overseas counsel is evidence that would be considered, however, it is not in my opinion objective documentation to establish relationship between individuals. In this case, between subject and a rebel leader through their respective spouses. Although this issue is addressed in the report, I would like to re-state that the rebel leader is deceased. I would also like to stress that the applicant's spouse, whose sister is allegedly the widowed spouse of the rebel leader, continues to reside in northern Sri Lanka. Neither counsel nor subject has provided convincing evidence as to why subject and not his spouse, or other immediate family members, would be at risk due to this association.
[18] It turns out that the PCDO may have been incorrect when she described the lawyer as overseas counsel. He may be called to the bar in Ontario, but even the Applicant's counsel described him as an English solicitor. In any event, I do not find the difference material. Whether or not the lawyer was called to the bar in Ontario, his evidence was not considered to be independent because he had known the Applicant for many years. In my view, this explanation was sufficient.
Certification of a Question for Appeal
[19] In an unusual turn of events, Applicant's counsel suggested that Respondent's counsel might wish to ask for certification of a question dealing with whether the duty to disclose Risk Opinions imposed by the Federal Court of Appeal in Haghighi v. Canada (Minister of Citizenship and Immigration) [2002] 4 F.C. 407 extends to any replies PCDO's might make after reviewing comments from counsel in response to Risk Opinions.
[20] Counsel for the respondent asked for time to reflect and subsequently faxed in written submissions indicating that he did not propose the suggested question for certification.
Conclusion
[21] For all these reasons an Order will be made dismissing the Applicant's application for judicial review.
"Sandra J. Simpson"
JUDGE
Ottawa, Ontario
June 2, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2669-02
STYLE OF CAUSE: SITHAMPARAPILLAI THARMASEELAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, MAY 20, 2003
REASONS FOR ORDER: SIMPSON J.
DATED: MONDAY, JUNE 2, 2003
APPEARANCES:
Ms. Barbara Jackman
For the Applicant
Mr. Jamie Todd
For the Respondent
SOLICITORS OF RECORD:
Ms. Barbara Jackman
Barrister and Solicitor
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030602
Docket: Imm-2669-02
BETWEEN:
SITHAMPARAPILLAI THARMASEELAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER