Date: 20050429
Docket: IMM-8299-03
Citation: 2005 FC 584
OTTAWA, Ontario, April 29th,2005
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
RAPHIAPILLAI MANVALPILLAI
SELLAM MANVALPILLAI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of a Pre-Removal Risk Assessment Officer (Officer) dated November 4, 2003 in which it was determined that the applicants would not be at risk of persecution if they were returned to Sri Lanka.
FACTS
[2] The applicants are Tamils from the north of Sri Lanka. Raphiapillai Manvalpillai is 82 years-old and his wife, Sellam Manvalpillai, is 80 years-old. The applicants came to Canada in May 1996 as visitors and made claims for refugee protection in November 1996. Their claims were denied by the Immigration and Refugee Board in July 1998 and leave to apply to the Federal Court for judicial review was similarly denied.
[3] The applicants then made an application for a risk-assessment under the Post Determination Refugee Claimants in Canada class (PDRCC). In May 2003, four and a half years after they submitted their request for a risk-assessment, the applicants were informed that as a result of the new Immigration and Refugee Protection Act, their pending PDRCC application was deemed to be an application for a Pre-Removal Risk Assessment (PRRA). On July 18, 2003, the applicants' legal counsel made additional submissions and provided the PRRA Officer with updated documentary evidence.
[4] In a decision dated September 8, 2003, the PRRA Officer concluded that the applicants would not be at risk if returned to Sri Lanka. The applicants filed an application for judicial review of the PRRA decision with this Court on October 23, 2003. On November 6, 2003, Justice Harrington granted a stay of removal pending the disposition of this application for judicial review.
THE PRRA DECISION
[5] In their submissions to the PRRA Officer, the applicants alleged that they began to experience problems with the Sri Lankan Security Forces in the early 1980s. Their sons were arrested and tortured by the authorities because they were suspected of being supporters of the Liberation Tigers of Tamil Eelam (LTTE) terrorism movement. Moreover, the applicants were compelled to hand over their home to the LTTE, were forced to pay extortion money and were continuously displaced. They claimed that if returned to Sri Lanka they would be persecuted by the authorities because of the perception that they are linked to the LTTE. In addition, because they are elderly and in poor-health, they would be easy targets for extortion by the Sri Lankan Army, the LTTE and other paramilitary groups.
[6] The PRRA Officer reviewed the documentary evidence and concluded that the applicants would not be at risk if returned to Sri Lanka. In particular, the Officer relied on the following findings:
i. Country conditions have improved dramatically since the applicants left Sri Lanka. In 2002, the government and the LTTE agreed to a cease-fire which has significantly reduced the number of human rights abuses. The government has also established special organizations, including a human rights commission, to address human rights concerns. Therefore, if the applicants were to encounter difficulties with the security forces or the LTTE, they could seek assistance from these organizations.
ii. The more recent, objective documentary evidence demonstrates that the Sri Lankan government is committed towards addressing and punishing human rights abuses.
iii. While the applicants may be questioned upon arrival, it is unlikely, given their ages, that they would be subject to reprisals from the authorities or the LTTE. There is insufficient evidence to indicate that they would be easy targets for extortion.
iv. The applicants also have an internal flight alternative in Colombo as citizens from the northern regions are no longer subject to travel restrictions.
THE STAY
[7] In his reasons for order, Justice Harrington concluded that the PRRA decision raises a serious issue of procedural fairness. He noted at paragraph 12:
In this case the officer picked and chose from material submitted and material the applicant had no notice might be relied upon.
And at paragraph13:
It is certainly arguable that when an officer intends to rely on information different from that advanced by the applicant, and selectively picks and choses, there should be "disclosure and a right of response sufficient to comply with the requirements of natural justice".
ISSUES
1. Did the Officer breach rules of procedural fairness by relying on documents without first disclosing them to the applicants?
2. Did the Officer err by ignoring relevant and contradictory evidence?
ANALYSIS
Issue No. 1
Did the Officer breach rules of procedural fairness by relying on documents without first disclosing them to the applicants
[8] The applicants submit that the Officer relied heavily on documentary evidence that was not disclosed to them prior to the release of the decision. In particular, they take issue with the Officer's reliance on the "Immigration and Nationality Directorate Report-April 2002" (IND Report), an internet report produced by the European Country of Origin Information Network, and the US Department of State Report on Sri Lanka - 2002.
[9] In Mancia v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 461, the Court of Appeal considered the very issue raised by the applicants in the present case. Justice Mackay, the trial judge in Mancia, found that a risk-assessment officer had not breached the duty of fairness by consulting three articles published after the claimant had filed his updated submissions. The articles were in the public domain and did not introduce new information that was not otherwise readily available. The Court of Appeal upheld the decision and set out the following test concerning disclosure at paragraph 27 per Decary J.A.:
[W]ith respect to documents relied upon from public sources in relation to general country conditions which were available and accessible at Documentation Centres at the time submissions were made by an applicant, fairness does not require the post claims determination officer to disclose them in advance of determining the matter;
[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.
[10] I have reviewed the documentary evidence relied on by the PRRA Officer and conclude that the PRRA Officer did not breach the duty of fairness by failing to disclose the documents in advance of his decision. First, the documents predate the applicants' most recent submissions to the PRRA Officer. Second, the documents are publically available.
[11] In the present case, the decision of the Court of Appeal in Mancia, supra, clearly sets out the test to be applied in determining whether there has been a breach of procedural fairness by the PRRA Officer. For the reasons discussed above, I have concluded that based on the applicable test, there was no such breach.
Issue No. 2
Did the Officer err by ignoring relevant and contradictory evidence
[12] In the present case, the applicants take issue with the Officer's findings of fact. They claim that the Officer's conclusion was patently unreasonable since there was documentary evidence before him indicating that conditions in Sri Lanka remain grave despite the cease-fire. I have reviewed the documents in question and am unable to conclude that the Officer erred in rendering his decision. It is well settled that the Court should not re-weigh the evidence. See Saliaj v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No.1506 (F.C.) paragraph 60. In my view, this is exactly what the applicants are asking the Court to do. The US Department of State Report on Sri Lanka - 2002 reports on the cease fire but also on continued killings and extortion. The PRRA Officer is not required to explain why she chose to disregard parts of the Report, and rely on other parts of the Report. It is clear from the Report that conditions had improved but there continued to be incidents of killings and extortion.
Outstanding H & C Application
[13] This application may become moot when the applicants' long outstanding Humanitarian and Compassionate application is processed. The grounds upon which the applicants fear being returned to Sri Lanka, after 9 years in Canada, relate to their age and inability to support and care for themselves in Sri Lanka where they no longer have any of their 9 children, and where their house has been abandoned long ago when they initially fled the war zone. Since there is a reasonable possibility this H & C application will be allowed, the PRRA Officer's decision, and this Court's judicial review of that decision, may become irrelevant.
[14] Neither counsel recommended certification of a question. No question will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-8299-03
STYLE OF CAUSE: RAPHIAPILLAI MANVALPILLAI ET AL
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, APRIL 21, 2005
REASONS FOR ORDER
AND ORDER BY: KELEN J.
APPEARANCES BY: Mr. Jegan N. Mohan
For the Applicants
Mr. Jamie Todd
For the Respondent
SOLICITORS OF RECORD: Mohan & Mohan
Barristers & Solicitors
Toronto, Ontario
For the Applicants
John H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20050429
Docket: IMM-8299-03
BETWEEN:
RAPHIAPILLAI MANVALPILLAI ET AL
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER