Ottawa, Ontario, October 23, 2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
KITHSIRI PRIYAL SEMBUKUTTI ARACCHIGE
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Sembukutti is deaf. He left Sri Lanka in February 1998 to study in the United States. Later that year, he was smuggled into Canada and made an unsuccessful refugee claim. In 2003, Mr. Sembukutti applied for an exemption, based on humanitarian and compassionate grounds, from the usual rule that applicants for permanent residence must apply from outside Canada. An immigration officer turned down his application. Mr. Sembukutti argues that the officer treated him unfairly and failed to consider important factors and evidence in his favour. He asks me to order a reassessment by a different officer. I can find no basis for overturning the officer’s decision and must, therefore, dismiss this application for judicial review.
I.
Issues
1.
Did the officer treat Mr. Sembukutti unfairly by failing to give him an
opportunity to address the officer’s concerns?
2. Did the officer fail to consider relevant factors or evidence?
II. Analysis
[2]
I can overturn the officer’s decision only if it was unreasonable or if
he treated Mr. Sembukutti unfairly.
[3]
The officer considered the following factors arising from Mr.
Sembukutti’s application:
• Mr.
Sembukutti signed a false declaration in his refugee application.
• He has no family in Canada. His mother and four sisters live in Sri Lanka.
• He was unemployed from 1998 until 2000, then worked as a welder from May 2000 to July 2002. He was unemployed again until February 2005, when he found another welding job.
• He has upgraded his welding qualifications (but failed to supply proof). These skills will assist him in finding employment in Sri Lanka.
• He received social assistance from 1998 to2000 and again from 2002 to 2005, overlapping with his periods of employment by several months. His counsel was asked to confirm this information, and did so.
• There was no evidence that his periods of unemployment were attributable to his deafness. His work record was better in Sri Lanka than in Canada.
• He has been involved in the Ontario Association of the Deaf, the Canadian Hearing Association and a group called “Silent Voice”. He has also been active in Buddhist temples.
• He was active in similar organizations both at the national and the local level in Sri Lanka. This suggests that there are at least some services available to the deaf in Sri Lanka.
• He would need the assistance of a sign language interpreter to apply for entry to Canada from Sri Lanka, but he had been able to obtain assistance to apply for a visa to the United States when he originally left Sri Lanka.
• A risk assessment indicates that he would not be in danger if he returned to Sri Lanka.
[4]
Based on these factors, the officer concluded that Mr. Sembukutti
would not suffer undeserved or disproportionate hardship if he were required to
apply for permanent residence from Sri Lanka.
1. Did the officer treat Mr.
Sembukutti unfairly by failing to give him an opportunity to address the
officer’s concerns?
[5] The officer was obviously concerned about certain aspects of Mr. Sembukutti’s application – his false evidence in his refugee claim, the absence of documentary evidence of his welding skills, and his receipt of social assistance while employed. Mr. Sembukutti argues that the officer had a duty to communicate these concerns to him and to give him a chance to explain.
[6]
As I read the officer’s decision, it was only the third issue –
receipt of social assistance - that was really of any significance. The officer
reviewed the facts carefully, double-checked the dates and, most importantly,
asked Mr. Sembukutti to confirm them. In other words, the officer did give Mr.
Sembukutti a chance to respond to his primary concern. I cannot see any
unfairness in the officer’s treatment of Mr. Sembukutti’s application.
2. Did the officer fail to consider
relevant factors or evidence?
[7] Mr. Sembukutti argues that the officer failed to give adequate consideration to his deafness and, in particular, to the absence of adequate services to the deaf in Sri Lanka. Further, he suggests that the officer did not give enough emphasis to his ties to Canada - through his religion, his involvement in advocacy groups and his employment. He also submits that the officer’s approach was at odds with the prevailing case law dealing with persons with disabilities: Nazar Jassim Al-Gumer v. Canada (Minister of Citzenship and Immigration), August 22, 2005, Immigration and Refugee Board (IAD), TA4-11257; Volniansky v. Canada (Minister of Citizenship and Immigration), 2005 FC 1597, [2005] F.C.J. No. 1966 (T.D.) (QL).
[8] In my view, Mr. Sembukutti’s arguments relate to the weight the officer gave to various factors, rather than an actual failure to consider relevant evidence. As noted above, the officer did consider Mr. Sembukutti’s deafness, his involvement in advocacy organizations both here and in Sri Lanka, and the limited information given to him about the situation faced by deaf persons in Sri Lanka. The officer also considered Mr. Sembukutti’s ties to Canada through his employment and religious activities.
[9] I have reviewed the cases on which Mr. Sembukutti relies. I note that in Al-Gumer, the person gave oral testimony about his experiences as a deaf person in Kuwait. He was not given an opportunity to learn sign language and was harassed for being deaf. In Volniansky, the person had severe learning disabilities and mental illness. A medical assessment indicated that her health would deteriorate if she were sent back to Israel. By contrast, the officer who considered Mr. Sembukutti’s application was given little information about the situation for the deaf in Sri Lanka or the impact on Mr. Sembukutti if he were required to apply for permanent residence from there. His original application made no reference to difficulties in Sri Lanka caused by a lack of services or resources for the deaf. He mentioned that he had apprenticed as a welder at a vocational school in Sri Lanka, and had been employed in that trade from 1985 to 1993. Most of his written narrative was devoted to allegations of personal risk that were duly considered by a risk assessment officer. In a supplementary submission, Mr. Sembukutti merely stated that it would be “hard to travel and communicate with visa office” and that he “would need sign language interpreter outside Canada”. As mentioned, the officer noted in his reasons that Mr. Sembukutti had not claimed any difficulty in dealing with the visa office in the past.
[10] In the circumstances, the officer’s conclusion that Mr. Sembukutti would not suffer unusual hardship was not unreasonable in light of the evidence that was submitted to him. Acccordingly, I must dismiss this application for judicial review. Neither party proposed a question of general importance for me to consider, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT IS that:
1. The application for judicial review is dismissed.
2. No question of general importance is stated.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6798-05
STYLE OF CAUSE: ARACCHIGE v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 20, 2006
APPEARANCES:
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Scott Simser |
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Joanna Hill
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SOLICITORS OF RECORD:
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SCOTT SIMSER Kanata, ON |
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, ON
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