Ottawa, Ontario, June 5, 2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
and
The Minister of Citizenship and Immigration
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant is an adult male citizen of Sri Lanka currently residing in England where be made an application to the Canadian High Commission for a permanent resident visa in Canada as a member of a Convention refugee abroad class or as a member of the Humanitarian – protected persons abroad designated class. By a decision dated August 16, 2006 that application was refused. This decision is the subject of the application for judicial review now before this Court.
[2] I will allow this application, the decision will be quashed and the matter returned to the High Commission for redetermination by a different Officer.
[3] The applicant is a Tamil who resided in the northern part of Sri Lanka. He claims to have been arrested, detained and beaten by army personnel. He claims that they had killed his father. The applicant fled to Singapore, then Africa, then to the United Kingdom where he sought refugee protection and was refused. He then applied to Canada.
[4] The circumstances of this case are somewhat similar to those considered earlier this year by this Court in Sutharsan v. Canada (MCI), 2007 FC 226. In that case this Court found that the Officer had applied the wrong test in law in determining what onus was to be borne by the applicant. The Court concluded that the proper test to be applied was whether the applicant had established that there was a reasonable chance or good grounds to believe that he would suffer persecution. That is not the case in the present circumstance since here the Officer stated that he was satisfied that there was no more than a mere possibility that the applicant was at risk and that protection from the authorities could be expected.
[5] The matter that is troubling in this case, is that the decision given here is, in its critical wording, virtually identical to that of Sutharsan. This leads this Court to believe that the Officer failed to give proper attention to the circumstances of this individual case and simply proceeded, by rote, or use of pre-written paragraphs from a computer data bank, to process a decision rather than give the matter proper individual attention.
[6] Here is paragraph 10 from the Sutharsan decision in this Court where the substantive portion of the Officer’s decision there was recited:
[10] In the letter conveying the decision under review, the Officer wrote:
. . .
You said that you were arrested by the police but not that you were ever charged with any offence. Although you said you were ill-treated, you did not mention that you reported this to the authorities, nor sought assistance from organizations such as the Anti-Harassment Committee or the National Human Rights Commission. Given the fact that you were never charged with involvement and that you were released, this would appear to indicate that the Sri Lankan authorities were satisfied that you did not have any involvement with the LTTE. I am therefore not satisfied that you have reason to fear the authorities would have any interest in you.
The cease-fire between the LTTE and the government remains in place and, although there have been instances where individuals were targeted by the LTTE (for instance the assassination of the Foreign Minister Kadirgamar in August 2005), these were politically motivated and the civilian population is not reported as being targeted. Your situation, were you to return to Sri Lanka, would be no more hazardous than that of any other person in that country. Organizations such as the Sri Lanka Monitoring Mission and Amnesty International, while concerned about the peace situation in Sri Lanka, have acknowledged that the Government of Sri Lanka has taken steps to restore the rule of law.
In the absence of any reason why the Sri Lankan authorities would have any interest in you, and given the decision of the LTTE to comply with the terms of the current cease fire, and given the relative stability in Sri Lanka at this time, I am not satisfied that you have a well-founded fear of persecution.
…
[emphasis added]
[7] To compare, this is the substantive part of the Officer’s decision in the present case:
You said you were detained by the army but confirmed that you were released without any apparent charge being made against you. Although you said you were ill-treated, I note that you did not report this to authorities, not did you seek assistance from organizations such as the Anti-Harassment Committee or the National Human Rights Commission. Given the fact that you were never charged with any offence and that you were released after your uncle was said to have paid a bribe, this would appear to indicate that the Sri Lankan authorities had no serious interest in you. After an incident that serious as the bombings at the Colombo airport in July 2001, it would appear likely that the Sri Lankan authorities would have been diligent in seeking out, detaining, and prosecuting those they believed were involved in the attack. The fact that they released you after a few days would appear to indicate that they did not believe you to have any connection to the airport attack and were therefore of no interest to them. I am therefore not satisfied that you have reason to fear the authorities would have any interest in you. You have also stated that the LTTE would wish to murder you for disclosing information about your former friend to the authorities. Given that you said you met your friend accidentally in Colombo and had spent so little time together, such a threat from the LTTE does not appear credible.
The cease-fire between the LTTE and the government remains in place and, although there have been instances where individuals were targeted by the LTTE (for instance the assassination of the Foreign Minister Kadirgamar in August 2005), these were politically motivated and the civilian population is not reported as being targeted. Your situation, were you to return to Sri Lanka, would be more hazardous than that of any other person in the country. Organizations such as the Sri Lanka Monitoring Mission and Amnesty International, while concerned about the peace situation in Sri Lanka, have acknowledged that the Government of Sri Lanka has taken steps to restore the rule of law. I am therefore satisfied that there is no more than a mere possibility that you are at risk from the LTTE and, if you were, you could reasonably expect protection from the authorities.
In the absence of any reason why Sri Lankan authorities would have any interests in you, and given the decision of the LTTE to comply with the terms of the current ceasefire, and given the relative stability in Sri Lanka at this time, I am not satisfied that you have a well-founded fear of persecution.
Therefore, you do not meet the requirements of this paragraph.
[8] An examination of the CAIPS notes made by the Officer indicates that he instructed someone identified only as MCH to include the above paragraphs in “Refusal Ltr.”
[9] The first of there paragraphs above recites the Officer’s understanding of the factual circumstances pertaining to this applicant. The second paragraph, save for the addition of the last sentence, which addition rescues the decision from the error of law made in Sutharsan, is identical to the wording used in Sutharsan. However, the Tribunal Record in this present case provides no basis upon which the statements attributed to the Sri Lanka Monitoring Mission could have been based. As for the statement that Amnesty International acknowledged that the Government of Sri Lanka has taken steps to restore the rule of law, the Tribunal Record shows that the actual statement made by Amnesty International was as summarized by that organization as follows:
The ceasefire between the government and the Liberation Tigers of Tamil Eelam (LTTE) remained in place despite numerous violations and a deteriorating relationship between two parties. Escalating political to the north by the end of the year, while a nationwide state of emergency was in pace for much of 2005. Hundreds of thousands of people remained displaced people’s camps. There were threats to reintroduce the death penalty and numerous reports of torture in police custody.
[10] It is difficult; if not impossible to consider that the Officer in fact reviewed the Amnesty International report and came to the conclusion that he did. The whole of the report strongly supports the applicant’s conclusions.
[11] Further, the CAIPS notes made by the Officer question why it was the applicant did not make a refugee claim when he fled to Singapore. The Officer overlooked or perhaps never knew that Singapore was not a signatory to the Convention and no such claim could be made there.
[12] The Record clearly indicates that the Officer failed to give proper attention to this file. He chose to copy from another file where a decision was made in a similar circumstance. The Officer failed to properly considering whether the present applicant’s file contained evidence to support the conclusion and findings ostensibly made by the Officer.
[13] I find that the purported findings of fact as indicated above are patently unreasonable having regard to the Tribunal Record in this case. The decision must be quashed and the matter returned for determination by a different Officer who is to review the record carefully before making a decision.
[14] Neither party requested a certified question.
JUDGMENT
For the Reasons given;
THE COURT ADJUGES THAT:
1. The application is allowed;
2. The matter is returned to the High Commission for redetermination by a different Officer;
3. There is no question for certification;
4. No Order as to costs.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5605-06
STYLE OF CAUSE: Ravindranath Anton v. MCI
AND JUDGMENT: Hughes, J
APPEARANCES:
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Mr. Daniel McLeod |
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Ms. Sandra Weafer |
SOLICITORS OF RECORD:
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Preston Clark McLeod Lawyers and Notaries Public 302-2695 Granville Street Vancouver, BC |
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Mr. John H. Sims, Q.C. Deputy Attorney General of Canada Department of Justice Vancouver, BC
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