Federal Court Decisions

 

Date: 20070228

Docket: IMM-2432-06

Citation: 2007 FC 226

BETWEEN:

SUNDARALINGAM SUTHARSAN

Applicant

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

REASONS FOR ORDER

GIBSON J.

 

INTRODUCTION

[1]               These reasons follow the hearing at Toronto on the 15^th of February, 2007 of an application for judicial review of a decision of an Officer at the High Commission of Canada in London, England (the “Officer”) wherein the Officer determined the Applicant did not meet the requirements for immigration to Canada as a member of the Convention refugee abroad class or as a member of the humanitarian-protected persons abroad classes. The decision under review is dated the 23^rd of March, 2006.

 

 

 

BACKGROUND

[2]               The Applicant presented no affidavit of his own on this application for judicial review.  The following background information is extracted from the Tribunal record and was essentially not in dispute before the Court.

 

[3]               The Applicant is a Tamil citizen of Sri Lanka, born in Pungudutivu, Jaffna region in the north of Sri Lanka on the 24^th of October, 1980.  He is therefore now twenty-six (26) years of age.  For the greater part of his life, he lived in the north of Sri Lanka.  He relates: 

Our family is from the north.  We suffered severely at the hands of the LTTE.  My father was a businessman and the LTTE demanded to contribute to their war effort.  This caused my father problems at the hands of the LTTE.  He did not want to live under the LTTE rule and moved his business to Colombo.

 

[4]               The Applicant has two (2) brothers and a sister.  One brother joined the LTTE in Colombo in 1999.  The Applicant alleges that this particular brother was a victim of the LTTE’s indoctrination.  The Applicant further alleges that one of the particular brother’s friends had joined the LTTE before the brother joined and had “brainwashed” the brother to join the LTTE.  The Applicant alleges that this caused the family problems in that the police suspected that the family members were supporters of the LTTE and watched the family very closely.

 

[5]               The Applicant alleges that in April 2000, the police came to the family home in Colombo in search of the brother who had joined the LTTE.  They did not find him.  In the result, they arrested the Applicant and detained him for about two (2) weeks.  The Applicant alleges that he was mistreated in detention.  In the result, he fled Sri Lanka.

 

[6]               The Applicant relates that his flight was to London, England where he studied at the City University, from September 2000 to July 2004 when he graduated with a Bachelor of Engineering.  He made a refugee claim in the United Kingdom on the ground that he had a well-founded fear of persecution in Sri Lanka.  His claim was rejected in the summer of 2001.  In Reasons for Refusal that appear on the Tribunal Record, an Officer in the Home Office, Immigration and Nationality Directorate, Integrated Casework Directorate wrote:

…

You claim that you were subjected to torture whilst in detention, which entailed being hung upside down, beaten and kicked.  The Secretary of State is aware that people who are suspected of having links with the LTTE risk being subjected to torture.  Tamils originally from the north and east of Sri Lanka are especially at risk of being held for longer periods as are up-country Tamils.  The Danish Immigration Service Report, published January 1999, states that a number of interviewees were consulted, including UNHCR, the Association for the Protection of Tamils, the Action Group for Tamils and the Law and Society Trust, who said that torture or other forms of maltreatment did not occur in the course of identity checks.  The Civil Rights Movement said that there had been an improvement in the treatment of people during identity checks.  If someone is freed on bail, this will mean they are not or no longer regarded as a serious suspect.

…

The Secretary of State notes that you were released by the police after 17 days due to a bribe paid by your father, he considers that the police would not have let you go so readily if they were convinced of your involvement with the LTTE and therefore he believes that you were not considered a serious threat by the authorities.

 

You state that after your release you were harassed by your neighbours who were predominantly Sinhalese.  With regard to your claimed difficulties with your neighbours the Secretary of State would point out that, in general, he takes the view that such individuals cannot be regarded as ‘agents of persecution’ within the terms of the 1951 United Nations Convention relating to the Status of Refugees.

…

 

[7]               In the result, the Applicant is subject to removal from the United Kingdom back to Sri Lanka.

 

[8]               To avoid removal to Sri Lanka, the Applicant applied for status in Canada.  His application was supported by five (5) Canadian sponsors.  The rejection of his application followed, leading to the application for judicial review that is now before the Court.

 

THE DECISION UNDER REVIEW 

[9]               The Applicant was not afforded an interview.  The decision under review was arrived at based entirely on the documentary record before the Officer.

 

[10]           In the letter conveying the decision under review, the Officer wrote:

…

You said that you were arrested by the police but not that you were ever charged with any offence.  Although you said you were ill-treated, you did not mention that you reported this to the authorities, nor sought assistance from organizations such as the Anti-Harassment Committee or the National Human Rights Commission.  Given the fact that you were never charged with involvement and that you were released, this would appear to indicate that the Sri Lankan authorities were satisfied that you did not have any involvement with the LTTE.  I am therefore not satisfied that you have reason to fear the authorities would have any interest in you.

 

The cease-fire between the LTTE and the government remains in place and, although there have been instances where individuals were targeted by the LTTE (for instance the assassination of the Foreign Minister Kadirgamar in August 2005), these were politically motivated and the civilian population is not reported as being targeted.  Your situation, were you to return to Sri Lanka, would be no more hazardous than that of any other person in that country.  Organizations such as the Sri Lanka Monitoring Mission and Amnesty International, while concerned about the peace situation in Sri Lanka, have acknowledged that the Government of Sri Lanka has taken steps to restore the rule of law.

 

In the absence of any reason why the Sri Lankan authorities would have any interest in you, and given the decision of the LTTE to comply with the terms of the current cease fire, and given the relative stability in Sri Lanka at this time, I am not satisfied that you have a well-founded fear of persecution.

…

[emphasis added]

 

It is worthy of note that the foregoing brief analysis treats the Applicant, in the context of Sri Lanka, as all persons in that country, not as a young Tamil from the north of Sri Lanka, one of whose brothers has joined the Tamil Tigers.  It makes no mention of the risk that the Applicant, given his profile as a Tamil from the north, his age and his brother’s actions, would face at the hands of the Tigers themselves.

 

THE APPLICABLE LAW

[11]           Subsection 12(3) of the Immigration and Refugee Protection Act[1] (the “Act”) provides for the selection as permanent residents, of persons who are outside or inside Canada if they are Convention refugees or are in similar circumstances to Convention refugees.  Section 96 of the Act defines the term “Convention refugee”.  Section 145 of the Immigration and Refugee Protection Regulations[2] (the “Regulations”) defines the Convention refugees abroad class and those who are members of that class.  Section 146 of the Regulations defines those who are members of the classes referred to in the decision under review as the “Humanitarian-Protected persons abroad designated class”.  Of the classes referred to in section 146, only the “country of asylum class” is relevant for the purposes of this matter.  That class is defined in section 147 of the Regulations.  Those provisions of law are set out in the Annex to these reasons.

 

THE ISSUES

[12]           While in the Memorandum of Argument filed on behalf of the Applicant, counsel identifies

four (4) issues on this application for judicial review, one of those issues, the failure of the Officer to address the application of section 97 of the Immigration and Refugee Protection Act, was abandoned before the Court.  The remaining issues are:  first, whether or not the Officer erred in law in his determination of whether the Applicant met the test for Convention refugee; second, whether the Officer erred in law in misunderstanding the materials put before him by and on behalf of the Applicant or in failing to address a significant element of the Applicant’s claim; and third, whether the Officer erred in law, breached fairness or made findings of fact perversely or capriciously or without regard to the totality of the evidence before him.  In addition, as with all applications for judicial of review such as this, the issue of standard of review arises.

 

ANALYSIS

Standard of Review

[13]           It is well established that an Officer abroad is entitled to considerable deference on his findings of fact although, if the Officer ignores evidence or issues before him or her, the decision may be set aside on judicial review.[3]  Similarly, it is well established that issues of procedural fairness are reviewable on a standard of correctness.[4]  I find nothing on the unique facts of this matter that would justify variation from those standards.

 

[14]           Equally, it is well established that, in matters such as this, errors of law are reviewable on a standard of correctness[5] and, where an error arises in the application of the law to the particular facts of a matter, the appropriate standard of review is reasonableness simpliciter[6]. 

 

Error in law in relation to the test at law under section 96 of the Act

[15]           In the decision letter under review, the Officer concludes:

In the absence of any reason why the Sri Lankan authorities would have any interest in you, and given the decision of the LTTE to comply with the terms of the current cease fire, and given the relative stability in Sri Lanka at this time, I am not satisfied that you have a well founded fear of persecution.

 

With great respect, the Officer places a heavier onus on the Applicant to establish his claim than is required by law.  In Krisnapillai v. Canada (Minister of Citizenship and Immigration)[7], my colleague Justice Mosley wrote at paragraphs 9 and 10 of his reasons:

Mr. Krisnapillai submits that the visa officer applied the wrong test for Convention refugee status when she found “I was not satisfied that the treatment you would receive were you to return to Sri Lanka would amount to persecution on any of the grounds enumerated in the “Convention refugee” definition”… .

 

The proper test is that of reasonable chance or good grounds that persecution will occur, not a balance of probabilities test:… .

[citations omitted]

 

Here, the Officer has imposed on the Applicant an onus to satisfy him that the Applicant has a well-founded fear of persecution rather than an onus to establish that there is a reasonable chance or good

 

grounds to believe that the Applicant will suffer persecution.  I am satisfied that the Applicant is entitled to succeed on this application for judicial review on that ground alone.

 

Misunderstanding material elements of the Applicant’s claim

[16]           In material placed before the Officer by the Applicant, in response to a question “Will you be able to return to your home country?, the Applicant indicates “no” and explains his position in part in the following terms:

…If war breaks out, that [sic] I would be targeted by the army on suspicion of being a supporter of the LTTE.  I fear that I will be arrested and subjected to unusual treatment.  Also, I fear that I will be forced to by the LTTE to join their cadres in their war efforts.[8] 

[emphasis added]

 

At page 39 of the Tribunal Record, in the same documentation, the Applicant writes:

They (the LTTE) kill people who oppose them.  They extort money.  They have extorted money from my parents in Colombo.  The plight of Tamils is such that they can enjoy human rights only to the extent the LTTE has allowed.  No one dare to oppose the LTTE even at the time LTTE target them.  (I have attached documents to show how the Tamils have lost their human rights due to the LTTE domination).

 

In the same material[9], the Applicant writes:

…Both the Government and the LTTE are preparing for war.  LTTE is recruiting fighters and training them.  As a youth, I will be subjected to forceful conscription by them.  I cannot defy the orders of the LTTE.  If I do, I will be arrested and detained and put into hardship by them.  The authorities will not be able to protect me as they are powerless in the areas controlled by the LTTE.

 

[17]           In the decision letter under review, the Officer completely ignores the risk to the Applicant at the hands of the Tamil Tigers and in so doing ignores evidence before him.  Once again, I am satisfied this ignoring of evidence constitutes a reviewable error.

 

Whether the Officer otherwise Erred in Law, Breached Fairness or Made Findings of Fact Perversely or Capriciously or Without Regard to the Totality of the Evidence

[18]           In light of my findings on the foregoing issues, I will not address this issue except to say that, against the appropriate standards of review, I find no other reviewable error in the decision under review.  Counsel for the Applicant did not pursue failure to provide an interview as an issue.  I agree that the failure to provide an interview would not, of itself, be determinative.  That being said, on the particular facts of this matter, where the Applicant was, at all relevant times, in London, England or its environs, and the decision was made there, it might well have constituted a wise investment, in the interest of both parties, for an interview to have been provided.

 

CONCLUSION

[19]           Based on the forgoing brief analysis, this application for judicial review will be allowed, the decision under review will be set aside and the matter will be referred back to the Respondent for reconsideration and re-determination by a different Officer.

 

 

 

 

CERTIFICATION OF A QUESTION

[20]           At the close of the hearing of this matter, I advised counsel that this application for judicial review would be allowed.  Neither counsel recommended certification of a question.  The Court itself is satisfied that no serious question of general importance arises out of this matter. 

 

 

 

 

“Frederick E. Gibson”

Ottawa, Ontario

February 28, 2007

ANNEX

 

 

Subsection 12(3) of the Act reads as follows:

 

 

 Section 96 of the Act reads as follows:

 

 

 

Subsections 144 to 147 of the Regulations read as follows:

 

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          IMM-2432-06

 

STYLE OF CAUSE:                          SUNDARALINGAM SUTHARSAN

 

Applicant

 

                                                            and

 

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

                                                            Respondent

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      February 15, 2007

 

REASONS FOR ORDER:               GIBSON J.

 

DATED:                                             February 28, 2007

 

APPEARANCES:

 

Micheal Crane	FOR THE APPLICANT
Bernard Assan	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Micheal Crane Barrister and Solicitor Toronto, Ontario	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada Toronto, Ontario	FOR THE RESPONDENT