Date: 19990928
Docket: IMM-5281-98
BETWEEN:
ALINO CANAGASURIAM
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision of a visa officer made at the Canadian Embassy in Manila, the Philippines, in which the visa officer determined that the applicant did not meet the requirements for permanent residence in Canada as a Convention refugee or by way of any other immigration category. The decision of the visa officer is dated the 24th of August, 1998.
[2] The applicant is a citizen of Sri Lanka. He is a Tamil who supports a separate Tamil homeland, but he attests that he is not a member of the Tamil Tigers. He is qualified as a lawyer. Although his practice of law was primarily in the commercial sphere, in late 1995 and early 1996, he assisted Tamils who were in difficulty with Sri Lankan authorities. This element of his practice brought he and members of his family themselves into conflict with Sri Lankan authorities. In March of 1996, the applicant fled to the Philippines with his wife on the grounds that he feared persecution in Sri Lanka by reason of his race and political opinion.
[3] The applicant"s mother and two sisters are in Canada. Sponsorship groups were formed in Canada to support the applicant"s relocation to Canada and those groups were approved on behalf of the respondent on the 18th of June, 1996.
[4] On the 21st of May, 1996, the applicant was advised that he had been recognized as a refugee under the mandate of the United Nations High Commissioner for Refugees.
[5] While the applicant has Convention refugee status in the Philippines, he has nonetheless persevered in his efforts to be recognized as a Convention refugee in Canada and to be landed in Canada as such.
[6] On the 4th of October, 1996, the applicant was first interviewed in connection with his application to come to Canada. His application was refused. The applicant applied for judicial review of that decision and that application was granted on procedural grounds, on consent. In the result, the applicant was again interviewed in July of 1997. As a result of that interview and the considerations arising therefrom, the decision here under review was made.
[7] In the decision under review, the visa officer wrote:
| You state that you are unwilling to return to Sri Lanka by reason of a fear of persecution for reason of your race as a Sri Lankan Tamil. |
| You have made mention of four incidents that cause you to fear that your life is in danger should you return to Sri Lanka. |
| 1. During your interview, you stated that the senior officer at the police station where a client was being detained threatened to have you killed if you continued in your efforts to have your client released from custody. |
| Based on the information provided at your interview, I do not agree that this constitute [sic] an objective fear of persecution. By your own admission, you found the officer to be rude and uncooperative and that you were losing your patience with him. You also stated that you had an argument with the officer and heated words were exchanged. |
| I must conclude that in the heat of the moment two frustrated and upset individuals used inappropriate language. I do not accept that this constitute [sic] a real threat against your life or person. |
| 2. A second incident relates to a visit by the security forces to your house. You stated at your interview that the officers became abusive and made rude remarks about lawyers and Tamil lawyers. The officers became abusive after you were unable to produce your national ID card, which you had lost. You stated during the interview that you were angry and upset at the officers because you considered that this is not the way to treat a lawyer. |
| I fail to see anything in this incident that would suggest that this was part of [a] pattern of harassment or intimidation on the part of the authorities. It appears to me that this was a routine search by the authorities at a time when there was considerable turmoil in Sri Lanka. |
| 3. The third incident you mentioned refers to a visit to your wife"s house by police officers investigating allegations made against a relative of your wife. According to your wife, the police were rude to her and made disparaging comments about Tamils. They tried to pull at her dress and tried to touch her. Your wife stated during the interview that the police told her they could stop her wedding or detain her if she did not cooperate and provide information. |
| While the conduct of the policemen cannot be condoned, I do not conclude that this incident is linked to any threats of persecution. The officers were conductive on [sic] investigation concerning a relative of your wife. |
| 4. You also mentioned an incident where neighbours reported that the occupants of unmarked vehicles were looking for you. Your claim is that they were intent on abducting you and making you "disappear". You never saw these vehicles or the occupants. There is no objective evidence that these vehicles ever existed or that the occupants were looking for you. |
| I must conclude that you have not demonstrated that you have a well-founded fear of persecution for one of the grounds stated in the refugee definition. I find that you are not a Convention Refugee as defined in the Immigration Act. |
| Your application was also assessed to determine whether you qualify in another immigration category. I have determined that you do not qualify in the immigration category of Independent because you are not qualified in an occupation which is currently in demand in Canada. Consequently, I must refuse your application for permanent residence in Canada. |
[8] In the CAIPS notes prepared from hand-written notes made during a long interview with the applicant, the visa officer noted:
| At the end of the interview, I indicated to the applicant that I perhaps heard indications of harassment, but I did not see a case of persecution or fear of persecution. Subj replied that he and his wife were convinced that the authorities were out to kill them and they had to leave the country. |
There follows in the CAIPS notes an analysis that parallels the decision letter quoted above. That analysis concludes:
| In my opinion, the applicant has not demonstrated an objective fear of persecution on the basis of race or political opinion. He has had run-ins with the individual police officers in the course of his duties as a lawyer, but these appear to be as much caused by his attitude and language as by the fact that he is representing Tamils who have been detained on suspicion they may be LTTE. |
[9] Counsel for the applicant alleges a range of errors that warrant granting of this application for judicial review. I will review only a limited number of the alleged errors because I am satisfied that those that I will review are sufficient to provide a basis for the applicant to succeed on this application.
[10] The decision letter under review makes no mention of the recognition of the applicant as a refugee under the Mandate of the United Nations High Commissioner for Refugees although the CAIPS notes clearly indicate that the visa officer was aware of that recognition. Chapter 3 of the Immigration Manual entitled "Refugees and Humanitarian Classes (Abroad)" provides the following guidance to visa officers when considering applications such as that here under review:
| 3.07 TERMINOLOGY |
| ... |
| 2) Mandate Refugees |
| Officers may be approached by persons who are in possession of a letter or document to the effect that the bearer is considered to be a refugee under the Mandate of the UNHCR. Although the High Commissioner will normally deal with groups and categories of refugees rather than with individuals, he will from time to time decide that an individual comes under the protection of his Mandate. Given Canada"s long standing support for the work of the UNHCR, individuals mandated by him will be given the same consideration in our selection process as are individuals who have received Convention refugee status from another signatory state. |
| ... |
| 3.24 CONVENTION REFUGEES |
| ... |
| 2) Eligibility Determination |
| ... |
| b) "By reason of a well-founded fear of persecution". "Well-founded fear" is normally interpreted to mean that the person has either actually been the victim of persecution or can show good reasons why he fears persecution. As "fear" is a subjective feeling, "well-founded" provides the objective element and imposes an obligation on the applicant to provide such indications as will enable the officer to decide whether the applicant has good grounds to fear persecution. |
| ... |
| i) The following factors may provide some indication of whether the applicant has a well-founded fear of persecution: |
| i) The decision of the UNHCR or another signatory state with regard to the applicant"s refugee status; |
| ... |
[11] In Ghorvei v.Canada (Minister of Citizenship and Immigration)1, Associate Chief Justice Jerome wrote at page 153:
| The "danger" report did not contain any references to either the applicant"s desertion to the enemy, Iraq, his political activism in Iran, or the fact that he was found to be a refugee by the U.N.H.C.R. The Minister erred in not considering these factors which are clearly relevant to this type of determination. |
While the facts of this matter are distinctly different from those that were before the Associate Chief Justice, I am satisfied that the same could be said here by analogy. The visa officer erred in not considering the fact that the applicant was recognized as a refugee under the Mandate of the UNHCR. His analysis does not acknowledge this fact and makes no effort to distinguish that recognition. In failing to distinguish the recognition, I am satisfied that the visa officer erred in law. Further, it is trite law that the concept of "well-founded fear of persecution" is forward looking. While past evidence of persecution is not necessarily determinative of a well-founded fear of persecution if the individual in question is required to return to the country against which he or she alleges fear, it is a factor to be considered. This is so even when the past experiences amount only to harassment when considered cumulatively, as they must be.2 The threshold for a well-founded fear of persecution is not a high one. It is sufficient if the person concerned establishes "a reasonable chance" or "a serious possibility" that she or he will face persecution.3
[12] Here, the visa officer individually analysed four events in the applicant"s past experience, thereby failing to consider their cumulative effect. Further, he engaged in no analysis whatsoever as to whether the applicant faced a "reasonable chance"or "serious possibility" of persecution if he were required to return to Sri Lanka, not merely because of past events taken individually or cumulatively, but also because of his race, his undisputed commitment to a separate Tamil homeland, his position of some influence as a lawyer, and his established pattern of endeavouring to help Tamils who are in difficulty with authorities through the exercise of his training and his position as a lawyer. Once again, in this regard, I am satisfied that the visa officer erred in law.
[13] For the foregoing reasons, this application for judicial review will be allowed without consideration of further grounds of review urged on behalf of the applicant.
[14] Counsel for the applicant recommended certification of a question regarding the obligations of a visa officer who is considering an application for entry to Canada as a Convention refugee of an individual who has been recognized as a refugee under the Mandate of the United Nations High Commissioner for Refugees. Counsel for the respondent recommended against certification of a question. No question will be certified.
____________________________
Judge
Ottawa, Ontario
September 28, 1999
__________________1 (1997), 138 F.T.R. 149 (F.C.T.D.).
2 See Retnem v. Canada (Minister of Employment and Immigration)(1991), 13 Imm. L.R. (2d) 317 (F.C.A.).
3 Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (F.C.A.).