Date: 20050307
Docket: IMM-9332-03
Citation: 2005 FC 326
Ottawa, Ontario, this 7th day of March, 2005
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
PRATHEEPAN LOGESWARAN
Applicant
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Pratheepan Logeswaran left Sri Lanka in 2000. After he arrived in Canada, he claimed refugee protection alleging that the Sri Lankan Army mistreated him because of his Tamil ethnicity. His claim was denied for want of sufficient evidence.
[2] Mr. Logeswaran subsequently applied for a pre-removal risk assessment (PRRA), which concluded that he would face little risk of harm if he returned to Sri Lanka and, in any case, he could probably live safely in Colombo.
[3] Mr. Logeswaran argues that the PRRA officer made serious errors and asks me to order a re-assessment. However, I can find no basis for overturning the officer's assessment and must, therefore, dismiss this application for judicial review.
I. Issues
1. Did the PRRA officer mis-interpret s. 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA)?
2. Did the officer fail to properly analyze the relevant evidence?
II. Analysis
1. Did the PRRA officer mis-interpret s. 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA)?
[4] Mr. Logeswaran argued that the PRRA officer erred by applying a balance of probabilities standard under s. 97 of IRPA (see Annex), rather than the lesser standard of a "serious possibility", which applies to refugee claims. This issue has now been decided by the Federal Court of Appeal and I am bound by its ruling: Yi Mei Li v. Canada (Minister of Citizenship and Immigration), 2005 FCA 1, [2005] F.C.J. No. 1 (QL) (C.A.).
[5] Justice Marshall Rothstein held that the appropriate standard of proof under s. 97 of IRPA is a balance of probabilities. Further, Justice Rothstein determined that applicants must show that they will probably be subjected to torture or other serious forms of mistreatment. He stated:
Proof on a balance of probabilities is the standard of proof the panel will apply in assessing the evidence adduced before it for purposes of making its factual findings. The test for determining the danger of torture is whether, on the facts found by the panel, the panel is satisfied that it is more likely than not that the individual would personally be subjected to a danger of torture. (At para. 29.)
Here, the PRRA officer concluded the assessment as follows: "With regard to Section 97, I find it not likely that the applicant would be in danger of torture or at risk to life or cruel and unusual treatment or punishment and therefore he does not meet the requirements of persons in need of protection as found in Section 97 of the Immigration Protection Act". The officer's approach is consistent with Justice Rothstein's judgment in Li, above, and I must, therefore, dismiss Mr. Logeswaran's argument on this point.
2. Did the officer fail to properly analyse the relevant evidence?
[6] Mr. Logeswaran disputes two aspects of the officer's analysis of the evidence. I can overturn the officer's factual findings only if I find that they were patently unreasonable, in the sense that they were entirely out of keeping with the relevant evidence.
(a) Analysis of current country conditions in Sri Lanka
[7] Mr. Logeswaran submits that the officer painted too rosy a picture of the current political situation in Sri Lanka. The officer noted that:
. a cease-fire agreement exists between the government and the Liberation Tigers of Tamil Eelam (LTTE), which requires the parties to abstain from hostile acts against citizens;
. there has been a general improvement in the protection of human rights in Sri Lanka, but some problems, including torture of detainees, persist.
[8] Mr. Logeswaran argues that the officer failed to consider that the peace talks in Sri Lanka have encountered setbacks and that a state of armed conflict could well resume. However, as I read the officer's reasons, the officer acknowledged that the peace process had begun to founder. The officer noted "setbacks and occasional violations of the cease-fire", as well as ongoing "political unrest and human rights violations". Mr. Logeswaran is really disputing the emphasis and weight the officer placed on the evidence; this is not a basis for overturning the officer's decision.
[9] Mr. Logeswaran also argues that the officer failed to consider the possibility that he would be arrested and mistreated for having left Sri Lanka on false travel documents. I see nothing in the record indicating that Mr. Logeswaran made any submissions along these lines to the officer, although one of the documents before the officer discussed the possibility of arrest under the Immigrants and Emigrants Act of Sri Lanka. That document actually minimizes the risk of detention of persons in Mr. Logewaran's circumstances. Again, I see no basis for discrediting the officer's analysis.
(b) Analysis of Mr. Logeswaran's chances of living safely in Colombo
[10] The officer concluded that many Tamils, perhaps as many as 400,000, live safely in Colombo. Mr. Logeswaran agues that the officer failed to consider whether it would be reasonable to expect him to move to Colombo instead of living in the north of Sri Lanka where he would have the benefit of the assistance and support of his parents.
[11] I agree with Mr. Logeswaran that the officer's analysis of the possibility of his living in Colombo lacks depth. However, looking at the officer's reasons as a whole, I cannot fault the officer's analysis. After all, the officer found little likelihood that Mr. Logeswaran would be mistreated anywhere in Sri Lanka. The supplementary finding that he would probably be safe in Colombo was, in the circumstances, adequately supported.
[12] Therefore, in light of the foregoing, I must dismiss this application for judicial review. Mr. Logeswaran has requested that I certify a question of general importance regarding the issue of the appropriate standard of proof in order to preserve any appellate remedies he might have. Even though the Federal Court of Appeal has decided the issue in Li, above, I will grant Mr. Logeswaran's request and certify the same question as was answered in Li:
Does Section 97 of IRPA require that a person establish, on a balance of probabilities, that he or she will face the danger or risks described in paragraphs 97(1)(a) and (b)?
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is dismissed;
2. The following question is certified:
Does Section 97 of IRPA require that a person establish, on a balance of probabilities, that he or she will face the danger or risks described in paragraphs 97(1)(a) and (b)?
"James W. O'Reilly"
Judge
Annex
| Immigration and Refugee Protection Act, S.C. 2001, c. 27
Person in need of protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. |
|
Loi sur l'immigration et la protection des réfugiés, L.C. 2001, ch. 27
Personne à protéger 97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée_: a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture; b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant_: (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats.
(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d'une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection. |
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9332-03
STYLE OF CAUSE: PRATHEEPAN LOGESWARAN v. MCI
PLACE OF HEARING: TORONTO, ON
DATE OF HEARING: November 22, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: March 7, 2005
APPEARANCES BY:
Ms. Barbara Jackman THE THE APPLICANT
Mr. Marcel Larouche FOR THE RESPONDENT
SOLICITORS OF RECORD:
BARBARA JACKMAN FOR THE APPLICANT
Toronto, ON
JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada
Toronto, ON FOR THE RESPONDENT