Date: 20040521
Docket: IMM-7666-03
Citation: 2004 FC 745
BETWEEN:
JEEGY GEORGE ATHANSIUS and
SORNAWATHY HARIKRISHNAN,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] The applicants are married and are citizens of Singapore. They claimed Convention refugee status in Canada on the basis of the male applicant's political opinion. The former Convention Refugee Determination Division of the Immigration and Refugee Board (CRDD) denied the claim. An application for leave to apply for judicial review of the CRDD decision was dismissed. Approximately one year after the CRDD decision, the applicants applied for a pre-removal risk assessment (PRRA). The PRRA officer determined that the applicants would not be subject to risk of persecution, danger of torture, risk to life or risk of cruel and unusual treatment or punishment if returned to Singapore. The applicants ask that the PRRA be set aside and remitted for redetermination before a different officer.
[2] The male applicant alleged that he wrote anti-government articles for internet newsgroups. He asserted that in March, 1999, he began anonymously posting articles to "soc.culture.singapore" expressing his opposition to the ruling People's Action Party (PAP) of Singapore. In May, 1999, messages posted on the newsgroup warned of internet screening by the internal security department of the Ministry of Home Affairs and of a crackdown on expressions of political opposition by the PAP. In September, 1999, Mr. Athansius allegedly learned that his telephone had been tapped. He claimed that on March 31, 2000, his computer, business files, and other items were seized when police officers raided his home. He said that he was interrogated, threatened, beaten and tortured, but released after being forced to sign certain documents. Fearing that he would be arrested and tortured again, he and his wife decided to flee Singapore and come to Canada.
[3] The CRDD determined that the applicants were not Convention refugees due to a lack of supporting evidence that could reasonably have been expected to have been produced - particularly the articles allegedly written by Mr. Athansius - and a lack of corroborating documentary evidence regarding objective fear. Most significantly, the CRDD did not believe that the male applicant wrote the alleged articles.
[4] After arriving in Canada, the applicants learned that a family friend had fallen to his death on October 3, 2001, while staying at their apartment. The applicants claimed that he was murdered by agents of the PAP who mistook the victim for Mr. Athansius. A private investigator from Sigma Security Services (Sigma) investigated and issued a report, which stated that "based on the facts collected so far and also my findings, it is my professional opinion as a licensed investigator that should Mr. Jeegy George Athansius and Mrs. Sornawathy arrive back to Singapore, they would be tortured and killed and currently there is no protection for them in Singapore".
[5] The PRRA officer noted that the applicants had repeated the same allegations of risk made in their refugee claim - they feared persecution due to the male applicant's posting of anonymous internet articles. After reviewing the documentary evidence submitted by the applicants, including the letter from Sigma, the officer found that there was insufficient credible and trustworthy evidence to warrant reopening and redetermining the CRDD decision. The officer reviewed the evidence - including the new evidence submitted by the applicants - in accordance with sections 96 to 98 of the Immigration Refugee and Protection Act, S.C. 2001, c. 27 (IRPA). He concluded that the evidence presented a diverse picture - Singapore is a Parliamentary democracy with an independent judicial system, but the governing PAP party is intolerant of dissent. The PRRA officer determined that the reports of mistreatment of anti-government journalists in the documentary evidence were inconsistent with the applicants' claims that the state sought to inflict torture or death on the applicants because of Mr. Athansius having written fourteen anonymous articles in 1999. He concluded that there was insufficient credible and trustworthy evidence to establish that the applicants are of any interest to police or any other state authority in Singapore.
[6] In relation to the letter from Sigma, the PRRA officer noted that there was no evidence to indicate what findings of fact the private investigator made and there was no indication as to why the applicants were at risk or from whom. The officer then speculated that, as a former businessperson, the male applicant might be at risk due to outstanding debts, but that such risk was not sufficient to meet the requirements of section 96 or paragraph 97(1)(a) of IRPA. With respect to paragraph 97(1)(b), the officer concluded, on the basis of the letter from Sigma, that while the applicants would be at risk if returned to Singapore, they had not rebutted the presumption of state protection.
[7] The applicants argue that the PRRA officer erred. Although the written submissions allege a breach of the duty of fairness by the officer in failing to give the applicants an opportunity to address his concerns about the agents of persecution, that argument was not advanced at the hearing.
[8] The primary argument is that the officer misconstrued the evidence in finding that state protection was available to the applicants. The applicants refer to the officer's finding that they would be subjected to risk within the meaning of paragraph 97(1)(b), but that they had failed to rebut the presumption of state protection. They submit that they clearly indicated that the agent of persecution was the Singaporean government. The Sigma letter was presented as corroborative evidence and definitively stated that they would be tortured and killed if returned to Singapore. Moreover, the applicants contend, the officer engaged in pure speculation when, on the basis of CRDD findings of fact and his own observations, he concluded that the applicants might be at risk from persons aggrieved with failed transactions or from members of organized crime seeking to collect debts. They say that there is no evidence, either from the materials submitted or from the CRDD decision, that they fear organized crime groups and, therefore, the conclusions regarding the source of the risk and the availability of state protection cannot stand. Most importantly, the applicants submit that the finding of risk is incongruous with a finding of state protection. The two cannot stand together and on that basis alone, the decision must be set aside.
[9] I agree with the applicants that the PRRA officer's analysis in this regard is flawed. Specifically, the officer should have considered the various factors relative to a section 97 analysis, including the availability of state protection, before concluding whether the applicants are at risk. If state protection exists, one cannot have an objective well-founded fear of persecution: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; Canada (Minister of Employment and Immigration) v. Villafranca (1992), 150 N.R. 232 (F.C.A.). In my view, the same reasoning applies to an assessment of risk. Thus, the officer erred in concluding that the applicants are at risk, but that state protection exists. That said, does the error vitiate the decision? For the reasons that follow, I think not.
[10] The applicants' claim was based upon fear of persecution from state agents on the basis of the male applicant's political opinion. Thus, the applicants must establish the well-foundedness of their fear with respect to section 96. In Brovina v. Canada (Minister of Citizenship and Immigration) 2004 FC 635, I discussed the authorities regarding analyses pursuant to sections 96 and 97 of IRPA. I specifically referred to Kulendrarajah v. Canada (Minister of Citizenship and Immigration) 2004 FC 79 wherein Mr. Justice Gibson determined that in circumstances where a section 96 claim does not exist and where no ground to support a need of protection, other than a Convention ground, is advanced, the claimant is not a person in need of protection.
[11] Here, the applicants have not claimed to fear persecution or risk on the basis of a non-nexus ground or from non-state actors. Although the applicants maintain that the PRRA officer erred in his section 96 analysis, by erroneously concluding that there was no fresh evidence regarding the question of whether they were of interest to state authorities or the police, I disagree. The officer's reasons indicate that he carefully considered all of the new evidence including the objective documentary evidence in relation to country conditions in Singapore as well as the Sigma letter. The applicants have not pointed to any evidence that the officer ignored or that would have caused him to have reached a determination different than that of the CRDD. Indeed, the officer noted that the material that post-dated the CRDD hearing did not "present a picture that is materially different from what was before the CRDD" and he concluded that there was insufficient credible and trustworthy evidence to enable him to reopen and redetermine the CRDD decision with respect to the applicants' refugee claims.
[12] It was not unreasonable for the PRRA officer to conclude that the applicants' narrative was not consistent with the documentary evidence and that there was insufficient credible and trustworthy evidence before him to conclude that the applicants were of any interest to the police or any other state authority in Singapore. The Sigma letter does not corroborate the applicants' fear of persecution from state authorities. It does not state the basis for any of the conclusions, suggest the cause of death of the victim, or the identity of the perpetrators. It provides no indication as to who was or might be targeting the applicants. In view of the CRDD's general negative credibility finding with respect to the applicants' claims and the lack of any new trustworthy or credible evidence that would respond to those concerns, it was not unreasonable for the PRRA officer to reject the PRRA application on the basis of section 96 of IRPA. The applicants simply failed to establish that they were at risk of persecution from state authorities as a result of the male applicant's political opinion and similarly failed to establish that the PRRA officer erred in concluding that they were not at risk within the meaning of section 96.
[13] In these circumstances, the PRRA officer's error in relation to the section 97 analysis is not material to the result. In Nyathi v. Canada (Minister of Citizenship and Immigration) 2003 FC 1119, Mr. Justice Blanchard determined that although there existed an error regarding section 97, the evidence "would not support a finding that the applicant was a person in need of protection". Justice Blanchard concluded that "[n]o useful purpose would be served in sending the matter back for re-consideration on this basis". That is precisely the situation here. Given the PRRA officer's conclusions regarding the section 96 claim and my determination that those findings are not unreasonable, the error of the officer regarding the section 97 analysis is not material to the result and does not vitiate his decision denying the applicants' PRRA application because the applicants advanced only a Convention ground.
[14] Counsel did not suggest a question for certification and none is appropriate.
ORDER
IT IS HEREBY ORDERED THAT the application for judicial review is dismissed. No question is certified.
________________________________
Judge
Ottawa, Ontario
May 21, 2004
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-7666-03
STYLE OF CAUSE: JEEGY GEORGE ATHANSIUS and
SORNAWATHY KARIKRISHNAN,
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION,
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 12, 2004
REASONS FOR ORDER BY: LAYDEN-STEVENSON J.
APPEARANCES BY: Mr. Lorne Waldman
For the Applicants
Ms. Amina Riaz
For the Respondent
SOLICITORS OF RECORD: Mr. Lorne Waldman
Waldman & Associates
Toronto, Ontario
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent