Federal Court Decisions

 

Date: 20100106

Docket: IMM-2448-09

Citation: 2010 FC 11

Ottawa, Ontario, January 6, 2010

PRESENT:     The Honourable Mr. Justice Near

 

 

BETWEEN:

SUGANTHAN SRIBALAGANESHAMOORTHY

Applicant

 

and

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review of the decision (the Decision) made by Visa Officer Gregory Chubak, in Kuala Lumpur, Malaysia, dated March 18, 2009, wherein the Visa Officer determined the Applicant is not a Convention refugee and not a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).

 

[2]               The Applicant is sponsored by a Group of five (G5) sponsors. The Visa Officer determined that the Applicant did not meet the requirements of any of the refugee abroad classes.

 

I.          Background

 

[3]               The Applicant is a forty-two (42) year old citizen of Sri Lanka. The Applicant is originally from the Jaffna District in Northern Sri Lanka. He fled to Malaysia on June 8, 2007, and has stayed there ever since.

 

[4]               The Applicant claims to be a victim of Liberation of Tamil Tiger Eelam (LTTE) forcible recruitment since January 14, 1994. The Applicant’s father donated money to the LTTE so that the Applicant could be released from his mandatory service. The Applicant nevertheless moved to his uncle’s house in Vavuniya on January 2, 1997.

 

[5]               On March 8, 1997, the Applicant was detained by a group of Sri Lan Lankan soldiers and tortured. He was suspected of being an LTTE member. The Applicant was eventually released upon the payment of a bribe by the Applicant’s uncle. A year later, the Applicant was again detained by the Sri Lankan army and offered a position as an informant.

 

[6]               The Applicant left to Colombo on May 20, 1999, at the urging of his uncle. The Applicant was routinely harassed by Sri Lankan authorities and on one occasion tortured after being detained subsequent to a bomb blast in the vicinity of his residence. The Applicant’s father allegedly passed away on December 27, 1999, from stress related to the Applicant’s circumstances. On December 3, 2003, the Sri Lankan army again detained the Applicant on suspicion of being a member of the LTTE and tortured him. The Applicant was eventually released. In the meantime, the Applicant’s brother allegedly passed away from undue concern with respect to the Applicant on January 15, 2004.

 

[7]               The Applicant returned to Jaffna and opened a poultry farm near his house on April 11, 2004. The Applicant experienced security and business difficulties as the Sri Lankan Civil War wore on and the A9 highway closed to traffic. The Applicant left Jaffna on June 6, 2007, and returned to Colombo. The Applicant was forced to briefly relocate to Trincomalee by Colombo Police but returned the next day. The Applicant decided to flee to Malaysia on June 8, 2007.

 

[8]               On January 28, 2008, the Applicant’s G5 sponsors applied to sponsor the Applicant as Convention Refugee under the Convention Refugee Abroad Class or the Humanitarian Protected Persons Abroad Class. The Applicant submitted his refugee claim on May 29, 2008. The Applicant stated on his application that he did not hold a work permit in Malaysia.

 

[9]               The Visa Officer determined that while the Applicant came from a conflict zone, he was nevertheless able to “travel freely without let, hindrance or persecution.” Similarly, the Applicant was able to travel in and out of Colombo. The Officer determined that the Applicant did not substantiate his claim of being the targeted by both the LTTE and the Sri Lankan army. Furthermore, any hardship suffered by the Applicant was limited to the lack of economic opportunities. The Visa Officer drew a negative credibility inference from the Applicant’s inability to admit that he previously applied for permanent residence in Canada in 2005. Another adverse credibility inference was made as a result of the Applicant’s inability to reconcile the details regarding his occupation as a farmer as described in the 2005 application and his occupation as a truck driver as described in the refugee claim.

 

A.        New Evidence

 

[10]           The Applicant did not swear an affidavit. Instead, one of the Applicant’s sponsors, Mr. Nakarajah Thilliampalam, swore the affidavit upon which the Application Record is based. Although discouraged, an application for judicial review can proceed on the basis of a third party’s affidavit: Sarmis v. Canada (Minister of Citizenship and Immigration), 2004 FC 110, [2004] F.C.J. No. 109 (QL), per Justice Michel Beaudry at paragraph 10.

 

[11]           The affiant recounts the steps the sponsor took to sponsor the Applicant. However, the affiant discusses at length the Applicant’s persecution and multiple internal flights. The affiant states the following important points at paragraphs 19, and 22-28:

19.       Contrary to the statements and findings of Immigration Counsellor Gregory Chubak, at the Canadian High Commission in Kuala Lumpur the Applicant never stated that his hardship in Sri Lanka was limited to “economic opportunities”.

 

[…]

 

22.       During the applicants interview with the immigration Counsellor on March 19, 2009 he was asked if it was possible that in 1995 he had applied for immigration to Canada.

 

23.       Our nephew found the question confusing as he had indeed previously applied for permanent residence in Canada but in the year 2005, not 1995.

 

24.       Our nephew’s information, overall, was entirely consistent. He had worked as a farmer back in the 1 990s. From 2002 —2004 he worked as a driver and had resided in Colombo, and the north and east.

 

25.       Our nephew’s information was clear that he was moving around regularly so as to avoid further harassment by members of the state security forces as well as the LTTE.

 

26.       There was, in essence, no contradiction with regard to his previous application for permanent residence to Canada which he conceded that he had made during the period of the tsunami, in 2005.

 

27.       Indeed, it was the error of the Immigration Counsellor, and not the applicant, when referring to a previous immigration application to Canada in 1995; which he then used to impugn his overall credibility.

 

28.       In addition, our nephew specifically told the Immigration Counsellor that he had been pressured to join the LTTE, and that our family had in fact faced numerous problems at the hands of the LTTE.

 

[12]           In my view, these paragraphs are hearsay. An affiant is entitled to comment on matters based on information and beliefs, but where the affidavit is not based on personal knowledge, "an error asserted by an Applicant must appear on the face of the record" (Sarmis, above, at paragraph 10; Turcinovica v. Canada (Minister of Citizenship and Immigration), 2002 FCT 164, [2002] F.C.J. No. 216 (QL), at paragraphs 12-14; Moldeveanu v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 55 (QL) per Justice Décary at paragraph 15).

 

II.         Standard of Review

 

[13]           The standard of review for questions of law is correctness while other issues are reviewable on a reasonableness standard (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, per Justice Bastarache and Justice LeBell at paragraph 34; and Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, per Justice Binnie at paragraph 59). At paragraph 59 of Khosa, above, reasonableness has been articulated as follows:

[…] Where the reasonableness standard applies, it requires deference. Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within "a range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir, at para. 47). There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome. The standard of review in this matter is reasonableness for the questions of fact or mixed fact and law and correctness for questions of law.

 

[14]           The standard of review in this case is reasonableness for questions of fact and mixed law and fact. However, questions of procedural fairness are reviewable under a standard of correctness: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 243 N.R. 22.

 

III.       Legislation

 

[15]           Section 96 of IRPA confers refugee protection on certain persons:

 

[16]           Section 97 of IRPA confers protection on persons who face a personalized risk of harm:

 

[17]           Sections 144-145 of the Immigration and Refugee Protection Regulations (IRPR) S.O.R./2002-227, delineate the requirements for the Refugee Aboard Class:

 

[18]           Subsection 146(1) and section 147 of the IRPR delineate the requirements for the Humanitarian-Protected Persons Class:

 

IV.       Issues

 

[19]           The Applicant raises the following issues:

 

(a)        The Visa Officer erred at law by simply misstating critical portions of the Applicant’s evidence;

 

(b)        The Visa Officer erred by failing to properly notify the Applicant of his right to submit documentary evidence in support of his fear of persecution in Sri Lanka, as well as his own doubts with regard to this key issue; and

 

(c)        The documentary evidence regarding the human rights situation facing the Applicant in Sri Lanka. The Visa Officer’s critical findings are both unsupported by a clear evidentiary basis and, at times, are simply wrong. The Visa Officer conducted a “highly-selective” analysis of the objective country condition documentation.

 

A.        The Visa Officer Erred at Law by Simply Misstating Critical Portions of the Applicant’s Evidence

 

[20]           The Applicant submits that the Visa Officer made four (4) misstatements of evidence which are sufficient to render the decision unreasonable.

 

[21]           First, the Visa Officer allegedly confused the Applicant by requiring him to provide details on a 1995 application for permanent residence he previously made. In fact, the correct date of the application was 2005 but the Computer Assisted Immigration Processing System (CAIPS) notes indicate 1995 where they transcribe the interview question. Later on the CAIPS notes refer to the 2005 date.

 

[22]           Second, the Visa Officer misstated the Applicant’s occupations and unreasonably drew an adverse credibility inference from the Applicant’s alleged lack of clarity on the issue. The Applicant submits that it was clear from the evidence that the Applicant’s primary occupation was farming, but that due to harassment by the LTTE and state security forces, the Applicant was forced to work in various fields, and at least on one occasion as a driver.

 

[23]           Third, the Visa Officer misstated evidence when he determined that the Applicant “was never asked to join the LTTE and moved around the country freely”. The Applicant submits that the information in front of the Officer demonstrated that the LTTE attempted to recruit the Applicant. Further, to characterize the Applicant’s numerous flights as “free movement and mobility” fails to grasp the Applicant’s information in a detailed and accurate manner.

 

[24]           Lastly, the Visa Officer allegedly made a perverse, capricious, and unreasonable finding of fact when he determined that the Applicant’s hardships were due to “limited economic opportunities”. The Applicant submits that the Visa Officer never attempted to confront the Applicant with this theory.

 

[25]           The Applicant relies upon the Federal Court of Appeal’s decision in Attakora v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 444 (QL), 99 N.R. 168 (Fed. C.A.), where Justice James Hugessen held at page 209 of the decision that a tribunal should not be “over-vigilant in its microscopic examination of the evidence of persons who, like the present applicant, testify through an interpreter and tell tales of horror in whose objective reality there is reason to believe”. A negative finding of credibility based on such reasoning will not be upheld. Similarly, focusing upon minor omissions in the Applicant’s evidence is a reviewable error: Lebbe v. Canada (Minister of Citizenship and Immigration), 2006 FC 564, 148 A.C.W.S. (3d) 626, per Justice Judith Snider at paragraph 10. The Applicant further relies on the definition of a capricious finding of fact as succinctly articulated by Justice William McKeown at Rajapakse v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 649, 41 A.C.W.S. (3d) 39041 A.C.W.S. (3d) 390 at paragraph 3:

[3]        In order for an alleged error of fact to be reviewable, the finding of fact must be truly erroneous. The finding must be made capriciously or without regard to the evidence, and the decision must be based on the erroneous finding Rohm-Haas Can. Ltd. v. Anti Dumping Tribunal. […]

 

[26]           Since the Applicant failed to produce his own affidavit, the Court is limited to identifying errors on the face of the decision: see Sarmis, above; Turcinovica, above, at paragraphs 12-14; and Moldeveanu, above, at paragraph 15.

 

[27]           The first alleged error is the adverse credibility findings that resulted when the Applicant could not explain his prior permanent residence application. Mr. Thilliampalam’s affidavit states that the Applicant was confused by the Visa Officer’s referral to a 1995 application. Mr. Thilliampalam was not at the interview. On the other hand, the Visa Officer tendered an affidavit where he explains that the reference to the 1995 application in the CAIPS was in fact a typo and that he specifically queried the Applicant on his failed 2005 permanent residence application. The Visa Officer’s explanations are plausible and they are backed by a sworn affidavit from a person who has personal knowledge of the events in question. In my view, the officer’s account of the events that took place during the interview should be preferred over the second hand information provided in Mr. Thilliampalam’s affidavit. Having found that the Applicant was questioned with respect to his 2005 permanent residence application, the Visa Officer reasonably drew an adverse credibility inference from the Applicant’s failure to answer those questions.

 

[28]           The second alleged error relates to the Applicant’s occupations. The Visa Officer states in the decision letter that the Applicant was unable to reconcile the discrepancies between the employment histories in the 2005 permanent residence application and the current refugee claim. The Applicant submits that there was no discrepancy to reconcile. The issue here is not whether a discrepancy in fact exists or not between the Applicant’s employment histories. The question is whether the officer reasonably drew an adverse credibility inference from the Applicant’s silence. Silence in the face of questioning can be a valid reason for questioning credibility: Matti v. Canada (Minister of Citizenship and Immigration), 2005 FC 1561, 144 A.C.W.S. (3d) 138, per Justice Konrad Von Finckenstein at paragraph 9. It does not lie in the mouth of the Applicant to explain away the Visa Officer’s questioning at the judicial review stage. In my view, the Visa Officer reasonably drew adverse credibility inference from the Applicant’s silence.

 

[29]           The last issue relates to the core of the Applicant’s refugee claim, namely the efforts of the LTTE to recruit him and the mobility he enjoyed during the civil war years in Sri Lanka, which led the Visa Officer to conclude that the Applicant’s hardship was derived from “limited economic opportunities”. The Visa Officer’s reasoning in this regard is found in the CAIPS notes. I reproduce the relevant portions below:

PA appears to have been able to live in Colombo, travel with some facility to the North, and has not been able to identify, beyond general, any specific persecution he faced.

 

[30]           The CAIPS notes reveal that the officer specifically asked the Applicant about his movements in Sri Lanka, the persecution he encountered, and the alleged recruitment effort by the LTTE:

Have you ever been persecuted in Sri Lanka? In 1994 and 1995, I received pressure to join the LTTE.

 

Were you forced to join? No, I did not join...

 

I note that you have lived for much of the last decade in Colombo rather than in the north? Yes, and while I was working as a driver I was able to travel frequently.

Again, please advise whether you have ever been persecuted in Sri Lanka? I feel like I have been targeted by both sides.

 

Explain? The LTTE wanted me to join and Colombo is not safe for a Tamil.

 

[31]           The Applicant urges this Court to hold that the Visa Officer erred in failing to recognize that the Applicant faced harassment as he moved around the country. However, the Applicant’s own narrative fails to mention any harassment during his time in the North when he drove up and down the A6 highway to supply his poultry farm. The only harassment that is disclosed during this period is the failure of the army to pay for confiscated poultry and the supply problems the Applicant encountered when the A6 highway closed. The Officer acknowledged the Applicant’s suffering at the hands of the LTTE but he reasonably determined that there was no substantiation of the Applicant’s allegations. The bulk of the information similarly does not point towards specific instances of harassment during the last few years of the Applicant’s stay in Sri Lanka. There is insufficient evidence to ground a claim from refugee protection on the evidence of this case. Consequently, the Visa Officer’s determination that the Applicant was an economic migrant was reasonable on the facts before him.

 

B.         The Visa Officer Erred by Failing to Properly Notify the Applicant of His Right to Submit Documentary Evidence in Support of His Fear of Persecution in Sri Lanka, As Well As His Own Doubts with Regard to This Key Issue

 

[32]           The Applicant submits that the Visa Officer breached the duty of procedural fairness by failing to assess the circumstances of persons similarly situated to the Applicant in Sri Lanka by considering objective country condition documentation. The Applicant submits that this Court’s jurisprudence indicates that refugee protection should be granted when the claimant can show that his or her fear of persecution is felt by persons similarly situated: Fi v. Canada (Minister of Citizenship and Immigration), 2006 FC 1125, [2007] 3 F.C.R. 400, per Justice Luc Martineau at paragraphs 14-16.

 

[33]           The Applicant submits that the Visa Officer had a duty to alert the Applicant with respect to the deficiencies in his application. The Applicant provided a number of cases to support this argument but the conclusion is universally opposite. Contrary to the Applicant’s submissions, this Court in Gadeon v. Canada (Minister of Citizenship and Immigration), 2004 FC 1245, 41 Imm. L.R. (3d) 206, per Justice James Russell, held at paragraph 101 that the evidentiary burden lies upon the Applicant:

[101]    Although the Applicant has the burden of proving that she qualifies to come to Canada, this does not relieve the Visa Officer of the duty to act fairly. This Court has stated on numerous occasions that, while a decision maker is not required to refer explicitly, or to analyse, every item before it in evidence that tends to negate a finding of fact, "much depends upon the relevancy and cogency of the evidence, and upon its importance to the ultimate decision on the fact to which the evidence relates," to borrow the words of Mr. Justice Rouleau in Toth v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1518 (T.D.).

 

[34]           The jurisprudence does not support the imposition upon the Visa Officer a duty to alert the Applicant to submit objective country information: Owusu v. Canada (Minister of Citizenship and Immigration), 2004 FCA 38, 318 N.R. 300, at paragraph 8. This ground of review must therefore fail.

 

C.        The Documentary Evidence Regarding the Human Rights Situation Facing the Applicant in Sri Lanka. The Visa Officer’s Critical Findings Are Both Unsupported by a Clear Evidentiary Basis and, at Times, Are Simply Wrong. The Visa Officer Conducted a “highly-selective” Analysis of the Objective Country Condition Documentation

 

[35]           The Applicant submits that the Visa Officer failed to lay out an evidentiary foundation for the decision. The Applicant relies on numerous cases, but they are all summarized in the Court decision of Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL), 157 F.T.R. 35 (F.C.T.D.) per Justice John Evans then of the Federal Court Trial Division, where this often quoted paragraph was articulated:

[17]      However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.

 

[36]           The Applicant submits that the failure of the Visa Officer to refer to important country condition information is fatal since the Applicant’s case should have been evaluated in contrast to similarly placed persons in Sri Lanka. There is no need to further comment on the Visa Officer’s factual determinations as they were all discussed at length under the first heading.

 

[37]           This submission is without merit because the Visa Officer was only required to refer to the materials placed before him by the Applicant. It is illogical to expect the Visa Officer to make references to objective country condition documentation that was not submitted. The fact that some country condition documentation may support the Applicant’s case does not impose a duty upon the Visa Officer to search for and produce that evidence on the Applicant’s behalf.

 

[38]           For the above reasons, the Applicant’s application for judicial review should be dismissed. Neither party proposed a certified question and no issue of general importance arises on the record.

 

JUDGMENT

 

THIS COURT ORDERS AND ADJUDGES that this application for judicial review is dismissed.

 

 

“ D. G. Near ”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-2448-09           

 

STYLE OF CAUSE:                          SRIBALAGANESHAMOORTHY

                                                            v.

                                                            MCI

 

 

 

PLACE OF HEARING:                    TORONTO

 

DATE OF HEARING:                      DECEMBER 2, 2009

 

REASONS FOR JUDGMENT

AND JUDGMENT BY:                    NEAR J.

 

DATED:                                             JANUARY 6, 2010

 

 

 

APPEARANCES:

 

Robert I. Blanshay (416) 413-4955	FOR THE APPLICANT
Brad Gotkin (416) 973-2314	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Robert I. Blanshay Barrister and Solicitor Toronto, Ontario	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General Canada	FOR THE RESPONDENT