Date: 20040630
Docket: IMM-7076-03
Citation: 2004 FC 947
Vancouver, British Columbia, Wednesday, the 30th day of June 2004
Present: THE HONOURABLE MR. JUSTICE MICHAEL KELEN
BETWEEN:
PATKUNARASA PUVENTHIRARASA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by immigration officer Emina Tudakovic (the "Officer") dated July 10, 2003, whereby it was determined that the Applicant does not meet the requirements to be issued a permanent resident visa in Canada because he is not a member of the "Convention refugee abroad" class nor of any of the "Humanitarian-protected persons abroad" classes.
[2] The Applicant is an ethnic Tamil born in the Jaffna region of Sri Lanka on February 25, 1978. The Applicant claims that he fears persecution from both the Sri Lankan Army ( the "SLA") and the Liberation Tamil Tigers (the "LTTE"). The Applicant claims that he was arrested and detained by the SLA for 28 days in 1995. After his release, the SLA visited his home several times per week and would beat him and harass him regularly during these visits. They would also accost him at the market. The Applicant also claims that he will be drafted by the LTTE if he returns to Sri Lanka. The Applicant left Sri Lanka on February 21, 2002, and has been residing in India since then.
[3] After her interview with the Applicant, the Officer determined that the Applicant did not meet the requirements for immigration to Canada. The Officer concluded that the Applicant was not a credible witness and found that he was in no danger of persecution based on any of the grounds cited in the Convention, nor was he or did he continue to be seriously and personally affected by civil war, armed conflict or massive violation of human rights in his home country.
[4] The Applicant has raised three issues: (1) patently unreasonable error with respect to the credibility finding; (2) breach of the duty of fairness in the failure of the immigration officer to disclose her own extrinsic evidence regarding conditions in Sri Lanka on which she relied in finding the Applicant's story not credible; and (3) failure to assess the risk to the Applicant if returned to Sri Lanka under current changed country conditions.
[5] For the purpose of this application, I need only consider the third issue. Upon reviewing the decision dated July 10, 2003, and the immigration officer's notes on file, I find that the immigration officer did not properly assess the risk to the Applicant if returned to Sri Lanka under current conditions. The Court has repeatedly held that the Board (in this case the immigration officer) is under a legal obligation, pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 201, c. 27, to assess the current risk to a young Tamil male from the north of Sri Lanka if returned to Sri Lanka, regardless of his credibility.
[6] The immigration officer did not provide any reasons, analysis or rationale for concluding that the Applicant would not be at risk of personal injury if returned to Sri Lanka under current conditions. The Applicant fits the profile of a person at risk if returned to the Jaffna region, and the immigration officer has a duty to explain her conclusion.
[7] In view of this finding, the Court does not need to consider the Applicant's argument that the immigration officer's credibility finding was patently unreasonable or that the immigration officer breached the duty of fairness by failing to disclose to the Applicant the immigration officer's personal information about country conditions in Sri Lanka.
[8] For these reasons, this application for judicial review must be allowed and the matter remitted to a different immigration officer for redetermination.
[9] The Applicant proposed a question for certification with respect to the duty of the immigration officer to disclose her own personal information on country conditions before finding the Applicant's story to not be credible. I invited the parties to make submissions with respect to this proposed question by July 23, 2004. However, it is clear that this question will not be determinative of the appeal and for that reason the Court cannot consider certifying this question. Accordingly, the parties do not have to file any further submissions with respect to this proposed question.
ORDER
THIS COURT ORDERS that:
This application for judicial review is allowed and the matter referred back to another immigration officer for a new interview with the Applicant and for redetermination.
(Sgd.) "Michael A. Kelen"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7076-03
STYLE OF CAUSE: PATKUNARASA PUVENTHIRARASA v. THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: June 29, 2004
REASONS FOR ORDER AND ORDER: KELEN J.
DATED: June 30, 2004
APPEARANCES:
Mr. Bruce Clark FOR APPLICANT
Mr. Daniel K. McLeod
Mr. R. Keith Reimer FOR RESPONDENT
SOLICITORS OF RECORD:
McKitrick Clark McLeod FOR APPLICANT
Vancouver, BC
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, ON