Date: 20050215
Docket: IMM-9333-03
Citation: 2005 FC 244
Toronto, Ontario, February 15th, 2005
Present: The Honourable Mr. Justice Mosley
BETWEEN:
YOGARAJAH KRISHNAPILLAI and
SIVAPATHAM THAMBIAH
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Yogarajah Krishnapillai is a 31-year-old Tamil Sri Lankan. He has been living as a refugee in Chennai, India since January 1998. His father, Sivapatham Thambiah, and relatives, resident in Canada, wish to sponsor him for landing. A visa officer at the New Delhi High Commission denied his application for a permanent resident visa as a Convention refugee abroad in June 2003. Mr. Krishnapillai argues that the officer erred in applying the test of refugee status and in assessing his evidence. I agree that the officer erred and will grant this application for judicial review.
VISA OFFICER'S DECISION
[2] The visa officer's refusal letter dated June 26, 2003 indicated, in part:
After carefully assessing all factors relative to your application, I am not satisfied that you are a member of any of the classes prescribed, in which your application was considered, because I did not find that the reasons you put forward for not wanting to return to your home country satisfied the definition of "Convention refugee" or "Asylum class." In particular, I was not satisfied that the treatment you would receive were you to return to Sri Lanka would amount to persecution on any of the grounds enumerated in the "Convention refugee" definition or that you have been, and continue to be, seriously and personally affected by civil war, armed conflict or massive violation of human rights in your home country. [Emphasis added]
In coming to this conclusion, I was particularly troubled by the inconsistencies and contradictions at interview. I note inconsistencies and contradictions, in particular, in regards to your contact and involvement with the LTTE and the Sri Lankan military/police.
[3] The officer's CAIPS notes contain a rough transcript of an interview conducted with Mr. Krishnapillai on June 16, 2003. They also contain the following under "CASE SUMMARY/ CONCLUSIONS":
After review of the applicant s [sic] file and interviewing him, I am not satisfied that he fulfils either the CR or the country of asylum class definition. The applicant was not credible and was contradictory throughout the interview in terms of his contact/ involvement with the LTTE and the Sri Lankan military/ police.
ISSUES
[4] 1. What is the appropriate standard of review?
2. Did the visa officer apply the wrong test for Convention refugee?
3. Did the officer err by ignoring or misinterpreting evidence?
Standard of Review
[5] There is common ground between the parties that the applicable standard of review of the visa officer's decision is reasonableness simpliciter but they arrive at that conclusion by different routes. The respondent submits that discretionary decisions of visa officers are to be held to a standard of reasonableness: To v. Canada, [1996] F.C.J. No. 696; Maple Lodge Farms v. Government of Canada et al, [1982] 2 S.C.R. 2; Lim v. Canada (Minister of Employment and Immigration) (1989), 29 F.T.R. 277, aff'd (1991), 121 N.R. 241. The applicant argues that the decision of whether he comes within the definition of a Convention refugee is not discretionary but rather a question of mixed fact and law requiring statutory interpretation.
[6] I agree with the applicant that the decision in question is not a discretionary decision such as visa officers typically make in visa application matters. Rather, it is a determination of whether the applicant comes within the definition of Convention refugee or country of asylum class, questions of mixed fact and law.
[7] The authorities cited by the respondent all involve visa officers making decisions about permanent residence and visitor applications without the added element of statutory interpretation in this case. While the decision-maker remains the same, the nature of the decision is significantly different, being more law-intensive. The experience of visa officers in making refugee determinations is not as extensive as that, for example, of the members of the Refugee Protection Division (RPD). The appropriate standard of review is, nonetheless, reasonableness with respect to the actual determination of refugee status on the merits: Bonilla v. Canada (Minister of Citizenship and Immigration) (2001), 12 Imm. L.R. (3d) 83; Chow v. Canada (Minister of Citizenship and Immigration) (2001), 211 F.T.R. 90.
[8] However, as findings of fact and of credibility are determinations that visa officers have to make on an everyday basis in the performance of their regular functions, I would apply a patently unreasonable standard to the factual findings of a visa officer. Sharma v. Canada (Minister of Citizenship and Immigration) (2002), 24 Imm. L.R. (3d) 244; Lim v. Canada (Minister of Employment and Immigration) (1991), 121 N.R. 241 (F.C.A.); Siriwardena v. Canada (Minister of Citizenship and Immigration) 2004 FC 604; Skobrev v. Canada (Minister of Citizenship and Immigration) 2004 FC 485; Seepersaud v. Canada (Minister of Citizenship and Immigration) 2001 FCT 948; Grewal v. Canada (Minister of Citizenship and
Immigration) 2002 FCT 1057.
Test for Convention refugee status
[9] Mr. Krishnapillai submits that the visa officer applied the wrong test for Convention refugee status when she found "I was not satisfied that the treatment you would receive were you to return to Sri Lanka would amount to persecution on any of the grounds enumerated in the "Convention refugee" definition" [emphasis added].
[10] The proper test is that of reasonable chance or good grounds that persecution will occur, not a balance of probabilities test: Naredo v. Canada (Minister of Employment and Immigration) (1981), 40 NR. 436 (F.C.A.) at para. 2; Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (F.C.A.); Lai v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 245 (F.C.A.); Fernandez v. Government of Singapore et al, [1971] 2 All E.R. 691 (H.L.).
[11] The respondent filed an affidavit from the visa officer sworn in December 2004, some 17 months after the decision was made, in which she attests that, as a result of her training, she was "well aware that the applicant was required to show a 'reasonable chance' of persecution." The respondent concedes that if this was a review of a Refugee Protection Division decision, the argument that the decision-maker erred in law would have serious merit. However, the respondent submits that the visa officer cited the appropriate statutory provisions and that the affidavit indicates that the officer was aware of the appropriate standard of proof.
[12] The applicant argues that the officer was functus officio when she made the affidavit and it cannot be relied upon to correct an error in her reasoning at the time the decision was made. I agree that, at best, the affidavit may be used to explain or clarify the decision but not to supplement or change the reasons provided earlier. On the face of the decision letter, the officer applied the incorrect standard and I am not satisfied that she had the correct standard in mind when she arrived at her decision.
Ignoring or misinterpreting evidence
[13] The grounds claimed by the applicant had related to the civil war, armed conflict, and violation of human rights in Sri Lanka. It is clear that the visa officer rejected his story of persecution. Applicant's counsel conceded at the hearing that his answers during the interview "were all over the map." Part of that may be attributable to translation difficulties as the interpreter employed spoke Indian rather than Sri Lankan, Tamil.
[14] However, the visa officer did not specifically set out what she found not to be credible. It is apparent from her questioning that she was concerned about the number of times that Mr. Krishnapillai was detained by the military and approached by the LTTE, but this did not clearly make it into her decision letter or case summary/conclusions. Nor is there any analysis of how the credibility concerns related to the merits of the claim.
[15] Mr. Krishnapillai submits that the basis for the officer's adverse credibility findings and resulting decision was unclear. Such a finding must be made in clear terms: Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.); Yaliniz v. Canada (Minister of Employment and Immigration) (1988), 7 Imm. L.R. (2d) 163 (T.D.).
[16] The respondent argues that the applicant seeks to import a requirement for reasons from visa officers comparable to those given by the RPD. The applicant denies this but asserts that fairness demands an adequate explanation for how the decision was reached: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[17] Even if the concerns about credibility were valid, the applicant argues that the officer failed to expressly consider other relevant factors, such as that Mr. Krishnapillai was provided temporary protection by India, is a young male Tamil from the eastern part of Sri Lanka, his account is consistent with that of other young men from that region, his brother had been killed in the conflict and his father had fled to and been granted refugee status by Canada.
[18] The officer herself noted in her affidavit that, on paper, the application looked very strong. She attests that it was the inconsistencies and contradictions in the applicant's story that led her to reach a contrary conclusion. The lack of any reference in her decision letter or the CAIPS notes to the specific nature of the problems she found or to what appear to be significant factors in the applicant's favour is troubling. I do not mean to suggest that visa officers considering applications for permanent residence must always provide extensive reasons for their decisions. I believe the reasons were inadequate in this case but I do not need to decide whether that alone would be sufficient to overturn the officer's decision.
[19] Overall I am satisfied that the decision is unreasonable and cannot stand. Accordingly, this application will be allowed and the matter remitted for reconsideration by a different visa officer. The parties proposed no questions for certification.
ORDER
THIS COURT ORDERS that this application for judicial review is allowed and the application for a permanent resident visa is remitted for redetermination by another visa officer. No questions are certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9333-03
STYLE OF CAUSE: YOGARAJAH KRISHNAPILLAI
SIVAPATHAM THAMBIAH
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 14, 2005
REASONS FOR ORDER
AND ORDER: MOSLEY, J.
DATED: FEBRUARY 15, 2005
APPEARANCES BY:
Barbara Jackman FOR THE APPLICANTS
Lorne McClenaghan FOR THE RESPONDENT
SOLICITORS OF RECORD:
Barbara Jackman
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
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