Date: 20050208
Docket: IMM-2428-04
Citation: 2005 FC 196
BETWEEN:
MANGAIYAKARASI PONNAMPALAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and
THE SOLICITOR GENERAL OF CANADA
Respondents
[1] This application is for judicial review of a negative Pre-Removal Risk Assessment ("PRRA") decision dated February 6, 2004 (the "Decision").
[2] The Applicant is a 64 year old citizen of Sri Lanka who has made two refugee claims in Canada. The first resulted in a negative decision dated March 12, 1999. Thereafter, the application for judicial review was dismissed. After a three-month stay in the United States, the Applicant returned and, although she had no new evidence to submit, she claimed again. The Refugee Protection Division of the Immigration and Refugee Board (the "RPD") reached a second negative decision dated March 11, 2003. The conclusions were based on the Applicant's failure to make a refugee claim in the United States and on changes in conditions in Sri Lanka. Leave to commence an application for judicial review was dismissed by O'Reilly, J. on August 11, 2003.
[3] Applicant's counsel said that his client has only one fear in connection with Sri Lanka. It is a fear of extortion by the Sri Lankan army or the LTTE. Because she has relatives outside Sri Lanka, the Applicant says that she would be perceived to have money. There is no other reason why she would be viewed as a wealthy woman.
[4] The RPD considered this concern and reached its conclusion in its decision of March 11, 2003, when it said at page 6:
The claimant also stated that she fears having the LTTE make demands of money from her because her six children have all left Sri Lanka. Three live in Canada and are Canadian citizens. The other three are in Switzerland, Germany and France. Furthermore, her husband, who had been in India, is now in Canada and has filed a claim for refugee protection. While the claimant claims that she fears possible extortion from the LTTE, she had no new evidence to support her claim. In any event, the documentary evidence indicates that:
Both parties have agreed to abide by international law and refrain from committing hostile acts against the civilian population, including torture, intimidation, abduction, extortion and harassment.
It was put to the claimant that the road to Jaffna has been re-opened and that thousands of displaced persons have returned to their homes in the north, with life returning to normal.
[5] The Applicant's PRRA submission was dated December 17, 2003 and was prepared by a lawyer. It read as follows:
The attached documentary materials which post date the hearing and are less than 30 days old set out that there is a state of emergency at the present time in Sri Lanka. The documents describe a dispute between the President and Prime Minister of the country which has resulted in an emergency being declared in Sri Lanka as per the headline of the news article dated November 5, 2003, and that Sri Lanka is plunging into chaos as per the headline November 4, 2003.
It is submitted therefore that the documentary evidence relied upon by the Panel refusing this claim cannot be considered applicable at the present time and it is submitted that the applicant would still have a well founded fear of return were she to return to Sri Lanka.
[6] One of the enclosures was the text of a BBC News (world edition) report dated November 8, 2003. It described a serious crisis caused by a power struggle that had developed between Sri Lanka's President and its Prime Minister over the approach to be taken in peace negotiations with the Tamil Tigers (the "Political Crisis"). It closed with the following remark:
Nothing has changed on the ground and we have assurances from both sides that the ceasefire agreement will hold, said Agnes Bragadottir of the Sri Lanka Monitoring Mission.
The Tamil Tigers have vowed to remain patient during the political upheaval.
[7] In his Decision, the PRRA officer listed sources he consulted. One was a US Department of State Report on Sri Lanka for the year 2002 (the "DOS Report"). However, although it was listed as a source, it was not referred to in the body of the Decision.
[8] The PRRA officer also consulted the Sri Lankan Monitoring Missions' website (www.slmm.lk/). It revealed at page 3 that, in 2003, it received forty complaints of attempted extortion by the LTTE and concluded that eleven were violations of the LTTE's ceasefire obligations.
THE ISSUE
[9] Against this background, applicant's counsel said that because the applicant fears extortion, it was patently unreasonable for the PRRA officer to have omitted specific reference to the DOS Report. It said at page 2:
The LTTE continued to commit serious human rights abuses. The LTTE reportedly committed several unlawful killings, and was responsible for disappearances, torture, arbitrary arrest, detentions, and extortion.
[10] In Ozdemir v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1646, 2001 FCA 331, Docket A-60400, the Federal Court of Appeal dealt with a comparable situation of allegedly inadequate reasons when it considered a Post-Claim Determination Officer's (the "PCDO") failure to address new evidence.
[11] In resolving the issue, the Court looked at the totality of the material before the PCDO and then stated at paragraphs 9 to 11:
[9] As for the second point, which was based on the inadequacy of the reasons, if the PCDO was required by the duty of fairness to give reasons for her decision, her reasons sufficed to discharge that duty. Decision-makers are not bound to explain why they did not accept every item of evidence before them. Much depends on the significance of that evidence when it is considered in light of the other material on which the decision was based: see Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35.
[10] Nor will a reviewing court infer from the failure of reasons for decision specifically to address a particular item of evidence that the decision-maker must have overlooked it, if the evidence in question is of little probative value of the fact for which it was tendered, or if it relates to facts that are of minor significance to the ultimate decision, given the other material supporting the decision.
[11] In this case, the new evidence was not of sufficient importance or probative value that the duty of fairness required the PCDO to deal with it expressly in her reasons. . . .
[12] In applying these principles to this case, I have concluded that it was not patently unreasonable for the PRRA officer to omit reference to the DOS Report because the evidence shows that, since the ceasefire, extortion by the LTTE has become a relatively minor occurrence. Further, it is clear that the change in country conditions caused by the Political Crisis, did not change the LTTE's obligation under the ceasefire agreement to refrain from extortion.
[13] For these reasons the application will be dismissed.
"Sandra J. Simpson"
JUDGE
Ottawa, Ontario
February 8, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: MANGAIYAKARASI PONNAMPALAM v. MINISTER OF CITIZENSHIP AND IMMIGRATION et al.
DATE OF HEARING: JANUARY 19, 2005
APPEARANCES: Jegan Mohan
Allison Phillips
SOLICITORS OF RECORD: Mohan & Mohan
Scarborough, ON
John H. Sims, Q.C.
Deputy Attorney General of Canada