IMM-8485-04
BETWEEN:
BILESH BANDUKA PANAGALA LIYANAGE
PRIYANKA SHYAMANI PANABOKKA
WATHUDURA ERANDI RANJANA DE SILVA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] These reasons for order are with respect to two applications for judicial review by the same applicants challenging a negative pre-removal risk assessment (PRRA) decision made pursuant to sections 112 and following of the Immigration and Refugee Protection Act (IRPA), in file number IMM-8484-04 and a negative humanitarian and compassionate consideration (H & C) decision made under section 25 of the IRPA, in file number IMM-8485-04. Both decisions were signed on the same day by the same immigration officer. The files have not been consolidated under Rule 105 of the Federal Courts Rules but were scheduled for hearing one immediately following the other on June 28, 2005. These reasons for order will serve for each of the two proceedings.
Factual Background
[2] Bilesh Banduka Panagala Liyange and Priyanka Shymani Panabokka are Sri Lankan nationals who are married to each other. This is Ms. Panabokka's second marriage. The third applicant, Wathudura Erandi Ranjana de Silva, was born in Sri Lanka from Ms. Panabokka's first marriage. As the facts in these proceedings concern principally Ms. Panabokka, she will be referred to throughout for ease of reference as "the applicant".
[3] In 1994, the applicant married Wathudura Janaki Kumudulal de Silva, the son of a wealthy and influential Sri Lankan family. This was not an arranged marriage. The couple's daughter was born in February 1996.
[4] The de Silva family owned a number of businesses in Sri Lanka, including a jewellery shop, a gem business, a gem mine and a cinnamon estate.
[5] The de Silva family never accepted their son's marriage to the applicant.
[6] On July 21, 1999, the applicant complained to the police that members of the de Silva family were engaged in ongoing harassment directed against her because of their dissatisfaction with the marriage.
[7] On May 11, 2000, apparently after relentless family pressure that he divorce the applicant, Mr. de Silva committed suicide.
[8] On May 18, 2000, the applicant filed a complaint with the police that the family of her deceased husband threatened her with bodily harm and death to force her to leave the family residence and the village where it was situated. The applicant also informed police authorities that as a result of these threats, she hired two personal security guards to protect her residence.
[9] On July 20, 2000, the applicant filed a further complaint with police authorities alleging that two family members had seen a person running from the family estate, apparently after having attempted to obtain access to the residence through a window by using a ladder.
[10] On August 27, 2000, a coroner certified that Mr. de Silva's cause of death was suicide by hanging.
[11] In May 2001, after acrimonious civil litigation, a decision from the district court in Galle awarded to the applicant her late husband's entire estate. Throughout the period of this litigation, the applicant claims to have been harassed, threatened and the victim of vandalism.
[12] On October 16, 2001, the applicant married her current husband, Bilesh Banduka Panagala Liyanage, a banker involved in the management of her first husband's estate.
[13] On December 6, 2001, while the applicant and her new husband were travelling in Germany, a warrant of arrest was issued in Sri Lanka against the applicant.
[14] On December 11, 2001, while in Vancouver, the applicant was advised about the issuance of the warrant of arrest by family members in Sri Lanka.
[15] On January 18, 2002, the applicants filed a Convention refugee claim on the grounds of political opinion and membership in a particular social group.
[16] On June 20, 2002, the applicant's family lawyer wrote to her sister concerning the warrant of arrest:
... I regret to inform you that the warrant in question has to be executed and your sister ... should appear in open court in person to seek out remedy.
I wish to let you know there were no provisions of a legal system to have this particular warrant to be taken off the role in any other way.
[17] On September 9, 2003, the Refugee Protection Division determined that the applicants were neither Convention refugees nor persons in need of protection. Among the relevant passages from the negative refugee decision are the following:
I have found the claimants' testimony not to be credible in certain areas, but I must say that I do accept the general thrust of the evidence. I accept that the claimant was married to her late husband, that he is from a very wealthy family, that she inherited the bulk of his estate, that they have a child together, Erandi, who was in the hearing room today, and that the family of her ex-husband did not fully support their marriage and, in fact, may have harassed her at times.
...
... [T]he claimant testified that the warrant is for giving money to the LTTE. The warrant itself does not indicate what the substantive charges are against the claimant. We have no evidence that there is an allegation that she is, in fact, supporting the LTTE.
When the claimant arrived in Canada, she told the Immigration officer that she did not even know what LTTE meant.
...
The principal claimant was ordered to appear in court on March 26, 2002 and clearly was in Canada and has not appeared, but we do not have any documentation as to what happened subsequent to March 26, 2002. There is no evidence to show that this accusation has anything at all to do with the LTTE or that subsequent warrants were issued or that there is an outstanding charge of a criminal nature, against the claimants.
...
Finally, the claimant has not rebutted the onus on her to establish that her state is incapable or unwilling to protect her.
There is no information that this negative determination was challenged by way of an application for judicial review.
[18] On January 26, 2004, the applicant's brother was shot in the leg while taking care of the cinnamon estate in Sri Lanka. The record includes a hospital admission form which refers to the applicant's brother having sustained a gunshot injury. He underwent surgery and was released from the hospital one week after the date of the incident.
[19] On February 18, 2004, according to allegations made by the applicant's current mother-in-law, a group of persons knocked on her house door asking for her son and threatening her. She recognized one of the persons as being the brother of the applicant's first husband. On March 8, 2004, she filed a police complaint to this effect in which she also alleged that the same individual threatened her on several occasions during telephone calls.
[20] On March 24, 2004, the husband of the applicant's sister alleged that while driving his vehicle he was obstructed by another vehicle and one of a group of approximately six persons from the second vehicle assaulted him. He was hospitalized that day with a contusion on the left side of his face. In making his claim to the police, he was able to provide the licence number of the second vehicle.
[21] On March 11, 2004, the applicant's family lawyer confirmed in a letter that the warrant of arrest related to an incident under the Sri Lankan Prevention of Terrorism Act. The lawyer confirmed that the warrant was still pending and that the evidence against the applicant was apparently fabricated to establish a prima facie charge against her. He concluded his letter by recommending that she remain in Canada to avoid being taken into custody where she "may be subjected to grievous torture and questioning".
[22] On March 17 and 24, 2004, the applicants filed respectively their requests for humanitarian and compassionate consideration under section 25 of the IRPA and for a pre-removal risk assessment under section 112 of the IRPA.
[23] On April 10, 2004, the applicant received an e-mail from her family in Sri Lanka advising that "Kapila's telephone number" had been found and that when "Kapila" had been asked whether he would assist regarding the sale of the cinnamon estate, he declined because he was "scared of those people". However, he added that he would "take care of it privately" and that he "still has to take buyers to the cinnamon estate".
[24] On May 27, 2004, a businessman and planter named Kapila Kushan who resided near Ambalangoda was choked to death, according to the May 28, 2004 edition of the Lankadeepa, a newspaper in Sri Lanka. The applicant alleges that Kapila Kushan is the same "Kapila" referred to in her family's e-mail of April 10, 2004.
[25] On August 27, 2004, the immigration officer presided an oral hearing with respect to the PRRA, presumably in accordance with paragraph 113(b) of the IRPA and section 167 of the Immigration Refugee and Protection Regulations, SOR/2002-227. The applicants' counsel and an interpreter were in attendance. The record includes the notes made by both the officer and counsel.
[26] On September 29, 2004, the applicants were advised of the negative PRRA and the negative H & C. Both decisions were made on August 31, 2004.
[27] On November 1, 2004, Justice James Russell issued an order staying the removal of the applicants pending the outcome of these two applications for judicial review.
Analysis
(i) The PRRA Decision
[28] The immigration officer found that the applicant had been subject to some form of harassment by her first husband's family. She also accepted that the applicant's brother and brother-in-law had been the victims of violent incidents, but concluded that there was insufficient evidence to indicate that her former in-laws were responsible for these events.
[29] The immigration officer questioned whether Kapila Kushan, who was murdered on May 27, 2004, was the same "Kapila" mentioned in the family e-mail of April 10, 2004 and, in any event, found that there was insufficient evidence to indicate that the applicant's former in-laws were responsible for the death.
[30] The immigration officer noted that the warrant of arrest did not contain details of the charges against the applicant and that her lawyer provided little information concerning the "terrorist matter". She cast serious doubt on the veracity of the arrest warrant.
[31] Finally, the immigration officer concluded that even if a warrant of arrest issued against the applicant, judicial redress and state protection were available to her should she so choose. In making this finding, the immigration officer stated:
I note that there is reported to be a climate of bribery and that family feuds, community spite and intimidation are used to justify the incarceration of people, mostly under terrorism legislation, even if it would appear to have no application to the circumstances, ... Some of this information is consistent with the applicants' allegations, however, it appears state protection, while not perfect and notably plagued with problems, is available to the applicants as [the applicant] Panabokka has accessed it in the past and has the services of a lawyer currently.
[32] After careful consideration of the applicants' written and oral submissions, including a review of the case law relied upon on their behalf during the hearing, I have concluded that there is no reviewable error in the PRRA decision.
[33] None of the findings of facts or inferences drawn by the immigration officer concerning the risk assessment was patently unreasonable:Kim v. Canada(Minister of Citizenship and Immigration), 2005 FC 437, at paragraph 19.
[34] The applicants' argument that the immigration officer did not consider the evidence placed before her in its totality must also fail. She considered the information that was available to the Refugee Protection Division when it rejected the applicants' refugee claims. She also dealt with the new evidence which arose after the negative refugee determination. However, she found that there was insufficient evidence to link these more recent incidents to the applicant's former in-laws. It was open to her to make this finding. The applicants' submission that she erred in not making a determination on the cumulative impact of all the incidents does not stand the test of scrutiny. The immigration officer did not accept the connection between the 2004 events and the former in-laws. It was not an error for her to accept the harassment caused to the applicant because of her in-laws' refusal to accept her first marriage and yet conclude that there was insufficient evidence to establish their involvement in the violent incidents of 2004.
[35] Similarly, it was open to the immigration officer to find, as she did, that the most recent letter from the applicant's lawyer concerning the warrant of arrest added some general information but no specific new data concerning the alleged terrorism charges.
[36] In the end, as ably argued by counsel for the respondent, the applicants' submission is that the immigration officer failed to draw the inference that the totality of the evidence concerning the risk assessment is more than sum of its parts. The argument is not one that can be sustained.
[37] Again, even after a "somewhat probing examination" of her decision, I find that the immigration officer's analysis of the state protection issue was not unreasonable. In my view, the applicants did not rebut, with clear and convincing evidence, the presumption that state protection was available to them in the circumstances of this case.
(ii) The H & C Decision
[38] In her humanitarian and compassionate consideration decision, the same immigration officer relied on her factual analysis in the PRRA decision concerning her acceptance of the alleged harassment by the applicant's former in-laws, her scepticism concerning the warrant of arrest and her view that there was insufficient evidence to connect the violent incidents of 2004 with the family of her first husband.
[39] In the view of the immigration officer, there was no unusual and undeserved or disproportionate hardship that would be suffered by the applicants upon their return to Sri Lanka.
[40] In reviewing the best interests of the applicant's daughter, Erandi de Silva, the immigration officer did not consider that her natural father's family would cause her harm. She also noted that the applicant and her current husband have extended families in Sri Lanka who could care for Erandi.
[41] In my view, the immigration officer could adopt the factual conclusions in her PRRA decision to the analysis she was making in the H & C application. However, it was important that she apply those facts to the test of unusual and undeserved or disproportionate hardship, a lower threshold than the test of risk to life or cruel and unusual punishment which was relevant to the PRRA decision.
[42] The immigration officer was alert to this distinction in her analysis of the impact of returning the applicants to face the harassment and resentment of the de Silva family:
With respect to the issue of the applicant facing unusual, excessive, or undeserved hardship as a result of the previous situation with the former in-laws, I am cognizance and respectful of the fact that family conflicts can be difficult and emotionally trying, and I can well understand that a dispute occurred over the financial needs of the estate, the losing party may harbour resentment towards the successful party. However, I do not find that the situation [sic] to be unusual, excessive or undeserved to warrant exceptional consideration within the context of the H & C application.
Here, I cannot conclude that the decision of the immigration officer was unreasonable.
[43] However, the immigration officer does not appear to have demonstrated the same care in analyzing the impact of the violent incidents which occurred in 2004 in the context of the unusual and undeserved or disproportionate hardship test. In the paragraph of her decision considering these events and the warrant of arrest, the immigration officer stated:
After reviewing and assessing the available research and the allegations of risk in a context of risk to life and stroke or security, I find the PRRA conclusions have bearing on the conclusions of risk component of this H & C application.
...
The PRRA decision concluded, which I find to be applicable within the context of risk on this H & C application, is that there appears to be state protection available to the applicants in the form of a functioning judicial system and access to counsel. [Emphasis added]
[44] This analysis does not provide the immigration officer's assessment of the relevant facts against the threshold of unusual and undeserved or disproportionate hardship. She erred, in my respectful view, in linking her PRRA decision to "...the context of risk on this H & C application." She was required to assess all the facts in the context of the relevant test for an application for humanitarian and compassionate consideration. She failed to do so. In my view, this constitutes an error of law which requires the Court's intervention.
[45] More specifically, in addition to considering the impact of returning the applicants to Sri Lanka to face the potential ongoing harassment of the de Silva family, the immigration officer was also required to assess the impact of their return to the country where the applicant's brother and brother-in-law were the victims of violent crimes and, the possibility of facing a warrant of arrest - unless the genuineness of that document was totally discounted. It was the cumulative effect of these factors that was not considered by the immigration officer in the context of undue and undeserved or disproportionate hardship.
[46] Accordingly, the application for judicial review of the PRRA decision will be dismissed. In the second proceeding, the application for judicial review of the H & C decision will be granted and referred for re-determination by a different immigration officer. As was requested during the
hearing, the parties may submit a serious question for certification within seven days of the date
of these reasons for order.
"Allan Lutfy"____
Chief Justice
Ottawa, Ontario
July 29, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8484-04 / IMM-8485-04
STYLE OF CAUSE:
BILESH BANDUKA PANAGALA LIYANAGE
PRIYANKA SHYAMANI PANABOKKA
WATHUDURA ERANDI RANJANA DE SILVA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: June 28, 2005.
REASONS FOR ORDER: The Chief Justice
APPEARANCES:
Ms. Nicole Hainer FOR APPLICANTS
Mr. Scott Nesbitt FOR RESPONDENT
SOLICITORS OF RECORD:
Ms. Nicole Hainer
Elgin, Cannon & Associates FOR APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT