Date: 20040420
Docket: IMM-4507-03
Citation: 2004 FC 582
Ottawa, Ontario, April 20, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
GUNADASA DISSANAYAKAGE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Gunadasa Dissanayakage is a 45-year-old Sinhalese citizen of Sri Lanka. The Convention Refugee Determination Division of the Immigration and Refugee Board found that Mr. Dissanayakage was not a Convention refugee, as he was excluded under section 1(f)(a) of the Refugee Convention, having been complicit in crimes against humanity carried out by the Sri Lankan military. He now challenges the Pre-Removal Risk Assessment (PRRA), which found that he would not be subject to a risk of torture, or to cruel or unusual treatment or punishment if he were returned to Sri Lanka.
[2] Mr. Dissanayakage asserts that the process utilized in relation to his PRRA was flawed, as he was not provided with a copy of a reply memorandum sent by the PRRA officer to the Minister's delegate charged with making the PRRA decision. He further argues that the finding that he would not be at risk from the Sri Lankan authorities or from the LTTE, if he were returned to Sri Lanka, was patently unreasonable.
Background
[3] Mr. Dissanayakage was a competitive wrestler. In order to be able to pursue his wrestling career at the international level, he joined the Sri Lankan Air Force. He was a member of the Special Airborne Forces, a unit that was engaged in extra-judicial illegal acts. Mr. Dissanayakage claims that although he witnessed a number of such incidents, he was not directly involved in any of them.
[4] In 1993, Mr. Dissanayakage came to Canada in order to participate in the Commonwealth and World Wrestling Championships as a member of the Sri Lankan wrestling team. After arriving in Canada, Mr. Dissanayakage defected and claimed refugee status, asserting that he faced persecution from Sri Lankan authorities because of his desertion from the Air Force, and because he had witnessed illegal acts. The Immigration and Refugee Boardrejected his claim, finding that Mr. Dissanayakage had been complicit in crimes against humanity. His application for leave to judicially review the Board's decision was dismissed by the Federal Court.
[5] Mr. Dissanayakage then submitted an application for a Pre-Removal Risk Assessment. His application included lengthy written submissions, letters of support, and voluminous information concerning country conditions in Sri Lanka. A PRRA officer subsequently prepared a negative risk opinion dated January 15, 2003, which was then forwarded to Mr. Dissanayakage's counsel for comment. Mr. Dissanayakage's counsel responded within the allotted time, taking issue with a number of the conclusions of the PRRA officer. Counsel also provided some additional documentation with respect to current conditions within Sri Lanka.
[6] Mr. Dissanayakage was subsequently provided with the decision of the Minister's delegate wherein it was concluded that he did not come within section 97 of the Immigration and Refugee Protection Act, S.C. 2001, c.27. As a result, his application for protection was rejected. In his decision, the Minister's delegate indicated that he had considered Mr. Dissanayakage's PRRA application and supporting documentation, the PRRA officer's January 15, 2003 opinion, and a "supplementary opinion" prepared by the PRRA officer, which was dated January 31, 2003. This "supplementary opinion" had not been disclosed to Mr. Dissanayakage.
[7] The process to be followed in a PRRA assessment involving a person who has been found to be excluded under section 1(f)(a) of the Convention is governed by s. 172 of the Immigration and Refugee Protection Regulations, SOR/2002-227, as amended. It was contrary to s. 172, and a breach of procedural fairness, Mr. Dissanayakage says, for the Minister's delegate to consider the PRRA officer's supplementary opinion. As a consequence, he submits that the decision should be set aside.
[8] Mr. Dissanayakage further submits that the Minister's delegate's finding that he would not be at risk of torture, or a risk to his life or to cruel or unusual treatment or punishment, was patently unreasonable. Mr. Dissanayakage submits that he was at risk of torture from the Sri Lankan authorities, because his defection had been high-profile, and had embarrassed the government. According to Mr. Dissanayakage, the Minister's delegate assumed that Mr. Dissanayakage would be treated as any other defector, and failed to take into account the specific circumstances of his situation.
[9] Finally, Mr. Dissanayakage submits that the Minister's delegate erred in failing to address the risk that he would face from the LTTE if he were returned to Sri Lanka. He claims that he would be subjected to reprisals from the LTTE, due to the fact that he was a member of a squad that was known to have engaged in the torture of LTTE members, and that the Minister's delegate failed to properly assess this risk.
Issues
[10] Mr. Dissanayakage raises three issues on this application. They are:
1. Did the Minister's delegate breach procedural fairness by considering the PRRA officer's supplementary opinion, given that the opinion had not been disclosed to Mr. Dissanayakage, and he had no opportunity to respond to it?
2. Did the Minister's delegate err in failing to properly address the risk of torture at the hands of the Sri Lankan authorities?
3. Did the Minister's delegate err in failing to assess risk at the hands of the LTTE?
1. Did the Minister's delegate breach procedural fairnessby considering the PRRA officer's supplementary opinion, given that the opinion had not been disclosed to Mr. Dissanayakage, and he had no opportunity to respond to it?
[11] Mr. Dissanayakage submits that s. 172 of the Immigration and Refugee Protection Regulations codifies the fairness principles articulated by the Federal Court of Appeal in cases such as Haghighi v. Canada (Minister of Employment and Immigration), [2000] 4 F.C. 407. According to Mr. Dissanayakage, section 172 contains a self-contained code governing the process to be followed in dealing with PRRA applications from individuals who have been found to be excluded under section 1(f)(a) of the Refugee Convention. This process contemplates the PRRA applicant having the last word, and does not allow for a supplementary or rebuttal opinion from the PRRA officer.
[12] The respondent submits that the PRRA officer's January 31, 2003 memo was not a further risk assessment, but merely confirmed that the PRRA officer had considered the submissions made by Mr. Dissanayakage, and nothing in those submissions had caused the officer to change the opinion. As a consequence, the respondent says there was no obligation to disclose the memo to Mr. Dissanayakage, nor was he entitled to respond to it.
[13] Given that this issue involves a question of procedural fairness, the standard of review is correctness: Ha v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 174.
[14] I agree with Mr. Dissanayakage that section 172 of the Regulations does not explicitly contemplate a supplementary or rebuttal assessment. However, I am not persuaded that the January 31 memorandum can properly be characterized as a supplementary risk assessment. While the Minister's delegate may have referred to the memorandum as a 'supplementary opinion' in the PRRA decision, this choice of terminology is not determinative of the issue. Having carefully reviewed the four paragraphs comprising the memorandum, I am satisfied that it was really nothing more than a transmittal letter.
[15] In the memorandum, the PRRA officer explains the context surrounding Mr. Dissanayakage's request for a risk assessment, and provides a copy of the officer's assessment. The officer also forwards a copy of Mr. Dissanayakage's responding submissions, and provides a brief summary of those submissions. Mr. Dissanayakage has not asserted that the summary mis-states or misconstrues his position in any way.
[16] The memorandum confirms that the PRRA officer had considered Mr. Dissanayakage's submissions, and states that nothing in those submissions changed the officer's opinion. The officer reiterated observations that had been made in the original assessment that Sri Lanka has acknowledged that the military had been involved in human rights violations, and had taken steps to prosecute the offenders. The memorandum concludes with the statement that the officer remained of the view that there was insufficient evidence persuasive evidence to indicate that Mr. Dissanayakage would be at serious risk of torture at the hands of the LTTE.
[17] I am not persuaded that there has been a breach of procedural fairness here. Had the PRRA officer's memorandum introduced new facts or new arguments, my conclusion may well have been different. As it is, the January 31, 2003 memorandum contained no new information, nor did the officer's analysis change in any way. There was simply nothing new for Mr. Dissanayakage to respond to.
[18] As a result, I am satisfied that there was no need to disclose the memorandum to Mr. Dissanayakage. In this regard I adopt the reasoning of Justice Simpson in Tharmaseelan v. Canada (Minister of Employment and Immigration), [2003] F.C.J. No. 891.
The Standard of Review for Issues 2 and 3
[19] The second and third issues raised by Mr. Dissanayakage relate to the substantive findings of the PRRA officer. Although there is some debate in the jurisprudence as to whether such findings are reviewable against a standard of reasonableness simpliciter or patent unreasonableness[1], I do not need to resolve this question, as my conclusion would be the same whichever standard is applied.
2. Did the Minister's delegate err in failing to properly address the risk of torture at the hands of the Sri Lankan authorities?
[20] Mr. Dissanayakage submits that the Minister's delegate erred in assuming that he would be treated like any other defector by the Sri Lankan authorities, ignoring the unusual and high-profile circumstances of his defection.
[21] A review of the PRRA decision, read in conjunction with the risk opinion, does not bear this out, and, as a result, I am not persuaded that there was any error in this regard. It is clear from the risk opinion that the PRRA officer was aware of and alive to Mr. Dissanayakage's submissions in this regard, having noted that Mr. Dissanayakage had claimed that he "... would be severely punished and possibly executed due to the embarrassment he caused the Sri Lankan government by defecting to Canada as part of an official delegation in 1993." The officer concluded that the evidence before him did not support the contention that the Sri Lankan government would still be interested in Mr. Dissanayakage some ten years after his defection. In coming to this conclusion, the officer chose not to put much weight on a letter from Mr. Dissanayakage's wife indicating that the Air Force is awaiting his return, finding that the letter was self-serving. It is not for this court to re-weigh the evidence.
3. Did the Minister's delegate err in failing to assess risk at the hands of the LTTE?
[22] Mr. Dissanayakage submitted that he faced a risk of torture at the hands of the LTTE due to the fact that he had been a member of a squad that was known to have engaged in the torture of LTTE members, and that this risk was never addressed.
[23] Once again, the record does not bear this out. This argument is specifically addressed, with the PRRA officer concluding that there was insufficient persuasive evidence to support a finding that the LTTE would still be interested in Mr. Dissanayakage for incidents that occurred ten years earlier.
Conclusion
[24] For these reasons, Mr. Dissanayakage's application is dismissed.
Certification
[25] Mr. Dissanayakage proposes two questions for certification. I am not persuaded that either questionis determinative of this case. As a result, no question will be certified.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed;
2. No serious questionof general importance is certified.
"Anne L. Mactavish"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4507-03
STYLE OF CAUSE:
GUNADASA DISSANAYAKAGE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 30, 200
REASONS FOR ORDER AND ORDER : Madam Justice Mactavish
DATED: April 20, 2004
APPEARANCES:
Lorne Waldman FOR PLAINTIFF / APPLICANT
Stephen H. Gold FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates FOR PLAINTIFF/APPLICANT
Toronto, Ontario
Morris Rosenberg FOR DEFENDANT/
Deputy Attorney General of Canada RESPONDENT
Department of Justice
Toronto, Ontario
[1] See Sidhu v. Canada (Minister of Citizenship and Immigration), 2004 FC 39 for a discussion of the jurisprudence dealing with this question.