Date: 20040617
Docket: IMM-656-03
IMM-661-03
Reference: 2004 FC 872
Ottawa, Ontario, this 17th day of June, 2004
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
PRESENT:
GNANASEHARAN SELLIAH, NIRMALA GNANASEHARAN
and MAHISHAN GNANASEHARAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The applicants seek judicial review of their application for a Pre-Removal Risk Assessment (PRRA), which was rejected because they were not deemed to be persons who faced a risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment if returned to Sri Lanka. The applicants also seek judicial review of a negative humanitarian and compassionate (H & C) decision rendered pursuant to subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). Both decisions arise out of the same set of circumstances, were made by the same immigration officer (the Officer) on November 26, 2002, and were received by the applicants on January 23, 2003.
[2] Following the hearing of the application for judicial review of the negative H & C decision it was determined that the similarity of factual circumstances warranted that the same judge hear both applications for judicial review. As a result, the Court directed that the decision on the application for judicial review of the negative H & C decision be adjourned sine die pending final disposition of the judicial review application of the PRRA decision. I now deal with both applications in turn, beginning with the PRRA decision. As will become evident, certain issues raised are common to both applications.
BACKGROUND FACTS
[3] The applicants, Gnanaseharan Selliah, his wife Nirmala Gnanaseharan, and his son Mahishan are Tamils and citizens of Sri Lanka. The principal applicant, Gnanaseharan Selliah, had been coerced into supporting the Tamil cause as early as 1987 as a student. He claims to have been arrested on two occasions. In August 1990, he opened a private school at Alaveddy. He claims that the Liberation Tigers of Tamil Eelam (the LTTE) would visit his school, conduct political classes and recruit members for their party. In October 1995, he moved to Madduvil with his wife and sister and later learned that the Sri Lankan Forces had destroyed his school and home and that his partner had been arrested and murdered by the army for having recruited for the LTTE. He claims that in April 1996, he moved to Vanni, his sister went missing and his brother-in-law and nephew died during an aerial attack by the army. He also claims that his wife, a nurse, was taken by the LTTE to their camp at Maliavi to provide medical services. They both eventually moved to Columbo where he was arrested by Sri Lankan police on suspicion of being involved in an attack by Tamil forces in Bandarawals on October 25, 2000. He was subsequently released upon conditions. The principal applicant's wife claims that while in Columbo, she was stopped by the police, harassed and molested at the police station. The applicants made arrangements to leave the country together.
[4] The applicants arrived in Canada on November 24, 2000, and claimed protection as Convention refugees. Their claim was based on their Tamil ethnicity and their fear of arrest, interrogation and torture at the hands of the Sri Lankan army. They also feared that they would be forcibly recruited again by the LTTE to work in their camps.
[5] On May 29, 2001, the Refugee Division determined that the applicants were not credible and rejected their claims for refugee protection. Their application for judicial review of that decision was dismissed on October 2, 2002. The applicants applied for consideration under the Post Determination Refugee Claimants in Canada Class (PDRCC) on December 18, 2001, an application considered under the PRRA process pursuant to the IRPA. They also applied for permanent residence on humanitarian or compassionate grounds, pursuant to subsection 25(1) of the IRPA, on April 17, 2002. The latter application was denied on November 28, 2002, without an interview. A negative PRRA decision was rendered by the same Officer on the same date. The applicants received notice to attend at the Immigration Office on January 23, 2003, and at that time were informed of the negative H & C and PRRA decisions. Those two decisions are the subject of judicial review applications dealt with in these reasons.
[6] On January 20, 2003, the applicants had submitted additional information, which was received by an immigration officer but was not considered by the officer determining the PRRA and the H & C applications. At that time, the applicants did not know that the Officer had made her decisions both applications on November 28, 2002, as they were not informed of the decisions until January 23, 2003.
I. IMPUGNED PRRA DECISION
[7] The Officer determined that the applicants did not have a personalized fear of persecution, risk of torture, risk to life or risk of cruel and unusual treatment if returned to Sri Lanka.
[8] In her decision on the PRAA application, the Officer stated that she considered the following documents: (1) the Personal Information Forms (PIFs) of the applicants; (2) the decision of the Convention Refugee Division (CRDD); (3) all documentation in respect to the applicants' PDRCC application and all documentation in respect to the applicants' H & C application; and (4) all documentation in respect to the applicants' PRRA application.
[9] The Officer noted a number of inconsistencies, contradictions and negative plausibility findings by the CRDD in respect to the applicants' evidence. The Officer also considered all the personal letters adduced by the applicants in respect to the alleged risks and considered the documentary evidence on the current country conditions in Sri Lanka. She determined that the alleged risks claimed by the applicants had not been adequately established. With respect to the letter written by the principal applicant's sister, stating that the LTTE came and took her husband and are still looking for the applicants, the Officer found that she was not sure who the sister was referring to, since the principal applicant stated in his PIF that his sister's husband and son were killed in an aerial attack. This led the Officer to doubt the validity of the letter.
[10] The Officer determined that simply being a Tamil was not reason enough for Mr. Selliah or his family to be targeted. She found that the principal applicant did not sufficiently explain why police would identify him as a participant in an attack held in Bandarawals on October 25, 2000. As well, the Officer found that the difficulties alleged by his spouse were not supported by any other evidence. As many Tamils live in Columbo and the LTTE has less of a presence there, the Officer was not satisfied on a balance of probabilities that there was a risk to Ms. Gnanaseharan. She viewed any risk as a general, not a personalized one.
[11] The Officer referred to an Amnesty International report from 2000 which stated that young Tamils are the high risk group for recruitment, and found that since the principal applicant was above the high risk age and his son was below the target age, they were not at a real risk for recruitment. The Officer also noted from the country documentation that almost 800,000 Sri Lankans were internally displaced in 2001 from the northern part of the Jaffha peninsula. This is the same area the applicants' are from. She also noted that the government resumed sending relief supplies to LTTE controlled areas after an embargo in February 2002. The report also stated that displaced people have sought refuge in government controlled areas away from LTTE controlled areas.
[12] The Officer also noted that notwithstanding these difficulties the country documentation reported that there was hope of improvement in Sri Lanka as a new government came to power in December 2001 with a mandate to revive the peace process. The LTTE announced a unilateral cease fire and the government did the same in February 2002. Though both parties had violated the agreement, they were committed to coming to a common agreement on how to deal with the LTTE's mandate of a separate state and a positive atmosphere was evolving. The Officer noted that there is now peace and stability in Sri Lanka and the UN Refugee Agency is making its presence known more and more since June 2002. As well, the LTTE and the government went to the negotiating table on September 16, 2002, in Thailand. The United Nations High Commissioner for Refugees (UNHCR), in a press release dated November 20, 2002, stated that the UNHCR appealed for a large sum of money to help Sri Lankans return to their homes, noting "... the needs of the thousands of Sri Lankans already streaming home and the many more people who look ready to follow". The Officer determined that the risk claimed by Mr. Selliah and his family was not as he stated it to be.
[13] The Officer determined that though Mr. Selliah claimed there was nowhere in the country where he could safely exist, the LTTE did not operate actively in the entire country in the same manner, and that many Tamils lived in peace in Columbo. In addition, she found that a US DOS report dated 2002 stated that the Country's Constitution grants every citizen freedom of movement and this is generally respected by the government. The Officer acknowledged that leaving an LTTE controlled area and trying to move to Columbo is quite difficult and that families were separated because the LTTE did not allow every member to leave at the same time. However, in 1995, the LTTE began allowing people to move more freely into government controlled areas.
[14] The Officer concluded that the applicants would not suffer a personal objectively identifiable risk, excessive sanctions, or inhumane treatment or torture if returned to Sri Lanka. (The Officer erroneously stated Bangladesh in her conclusion. I accept this to be a clerical error of no consequence.) The Officer stated that the applicants should therefore not benefit from Canada's protection under section 96 or 97 of the IRPA. The Officer also found that an oral hearing was not appropriate because even if she were to accept all of the evidence, it would not justify allowing the application for protection pursuant to section 167(c) of the Immigration and Refugee Protection Regulations.
ISSUES
[15] The applicants raise five issues on judicial review of the PRRA decision:
A. Did the Immigration Officer breach the duty of fairness?
B. Did the Immigration Officer err in law in failing to consider whether the evidence proffered by the applicants on January 20, 2003, ought to cause the officer to reconsider the decision?
C. Did the Immigration Officer err in law in ignoring Ms. Gnanaseharan's circumstances?
D. Did the Immigration Officer ignore or misinterpret evidence?
E. Did the Immigration Officer apply the wrong standard of assessment under section 97 of IRPA?
STANDARD OF REVIEW
[16] PRAA officers have a specialized expertise in risk assessment. Their findings are usually fact driven and, in my view, warrant considerable deference from a reviewing Court. There appears to be some debate in the jurisprudence as to whether the findings of PRRA officers are reviewable against a standard of reasonableness simpliciter or patent unreasonableness: See Sidhu v. Canada (MCI), [2004] F.C.J. No. 30,online: QL, 2004 FC 39, at para. 7, and Joseph v. Canada (MCI), [2004] F.C.J. No. 392, online: QL. I need not resolve this question on the facts of this case, since my conclusion is the same whichever standard is applied.
ANALYSIS
A. Did the Immigration Officer breach the duty of fairness?
[17] The applicants submit that the Officer breached the duty of fairness in three ways; (1) by failing to clarify issues that were unclear prior to rendering a decision; (2) by relying in a large part on the reasoning of the CRDD in making her negative credibility findings and failing to hold an oral hearing; and (3) by failing to provide the applicants an opportunity to address certain country reports relied on by the Officer, which post-date the applicants' PRRA submissions. I will deal with each of these alleged breaches of fairness in turn.
(1) Clarify issues
[18] The applicants argue that since the Officer was unsure as to who the principal applicant's sister was referring to in her letter, the Officer should have clarified that issue, by either holding an interview with the applicants or at the very least communicating with the applicants, before rejecting the letter on this basis. The officer's conclusion that Mr. Selliah faced only a generalized risk was put at issue by this letter, and had the officer not rejected it, the decision might have been different.
[19] The applicants also submit that the Officer should have clarified the reasoning behind the secret wedding held by the adult applicants, instead of merely determining that there was no plausible explanation for a secret wedding.
[20] The applicants argue that it was important to clarify these facts to ensure that the decision was not founded on an erroneous factual basis. The applicants maintain this was significant since the Officer stated in her reasons that "... even if I were to consider all the elements of evidence as accepted, it would not justify allowing the application for protection, ...".
[21] The issue of whether there is an obligation on a visa officer to make further inquiries when an application is ambiguous was considered in Lam v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 316 (F.C.T.D.). At paragraph 4 of his reasons Mr. Justice Rothstein wrote:
A visa officer may inquire further if he or she considers a further enquiry is warranted. Obviously, a visa officer cannot be wilfully blind in assessing an application and must act in good faith. However, there is no general obligation on a visa officer to make further inquiries when an application is ambiguous. The onus is on an applicant to file a clear application together with such supporting documentation as he or she considers advisable. The onus does not shift to the visa officer and there is no entitlement to a personal interview if the application is ambiguous or supporting material is not included.
[22] I agree with the above reasons of Justice Rothstein in Lam. In the case before me the onus was on the applicants to make their case and adduce the necessary evidence to meet this onus. The evidence adduced was ambiguous and in some instances contradictory. There is no evidence to suggest that the Officer was wilfully blind in the circumstances and I find that she was acting in good faith. There was no obligation on the Officer to gather or seek additional evidence or make further inquiries. The Officer was required to consider and decide on the evidence adduced before her. In my view, there was no duty to further clarify the evidence. (See also: Ly v. Canada [2000] F.C.J. No. 1965, online: QL; and Tahir v. Canada (Minister of Citizenship and Immigration) (1998), 159 F.T.R. 109 (F.C.T.D.).
(2) Reliance on the credibility findings of the CRDD and failure to hold an oral hearing
[23] The applicants submit that the Officer relied on the negative credibility findings of the CRDD to doubt the new evidence before her. The principal applicant submitted additional documents, amongst others, a letter from his sister verifying that there was a clear interest in him by Sri Lankan forces and the LTTE. The Officer explicitly rejected this evidence doubting the validity of the sister's letter and finding the other documents did not support an objective fear. The applicants maintain that it is apparent that the Officer was not certain about the import of some of the information before her, yet did not seek to clarify it. The applicants argue that in the context of sections 113 of IRPA and 167 of the Regulations it was incumbent on the officer to provide an oral hearing, whether by way of personal interview or phone call.
[24] The respondent submits that the Officer noted that negative credibility findings were made by the CRDD but did not rely on those findings in reaching her decision. The respondent further submits that in most cases, PRAA's are decided on the basis of written submissions. A hearing is held in exceptional circumstances when, according to the prescribed factors, the Minister is of the opinion that a hearing is required, as stated in subsection 113(b) of IRPA. The prescribed factors are set out in section 167 of the Regulations:
| 167. For the purpose of determining whether a hearing is required under paragraph 113(b) of the Act, the factors are the following:
(a) whether there is evidence that raises a serious issue of the applicant's credibility and is related to the factors set out in sections 96 and 97 of the Act;
(b) whether the evidence is central to the decision with respect to the application for protection; and
(c) whether the evidence, is accepted, would justify allowing the application for protection.
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167. Pour l'application de l'alinéa 113(b) de la Loi, les facteurs ci-après servent à décider si la tenue d'une audience est requise :
a) l'existence d'éléments de preuve relatifs aux éléments mentionnés aux articles 96 et 97 de la Loi qui soulèvent une question importante en ce qui concerne la crédibilité du demandeur;
b) l'importance de ces éléments de preuve pour la prise de la décision relative à la demande de protection;
c) la question de savoir si ces éléments de preuve, à supposer qu'ils soient admis, justifieraient que soit accordée la protection
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[25] The respondent submits that these factors are cumulative due to the use of the conjunctive "and" in section 167 of the Regulations. The applicants' PRRA submissions consisted of additional arguments to their PDRCC submissions and reiterated the applicants story, and are not exceptional. The respondent submits that the Officer based her decision on the lack of evidence demonstrating personalized risk, not the credibility of the applicants. The issue of credibility was not central to the PRRA Officer's decision. The respondent argues that since the decision of the PRRA Officer does not raise a serious issue of credibility, there was no duty on the PRRA Officer to hold an oral hearing. The Court has interpreted a serious issue of credibility as an issue of credibility that is central to the decision in question, which is not the case here.
[26] I find that though the PRRA decision does contain references to the adverse credibility findings made by the CRDD, I am satisfied that the Officer did not import into her decision the credibility findings of the CRDD and that such references in the Officer's reasons were not determinative of her decision. The Officer did not err in considering the CRDD decision, indeed in the context of a PRRA application it was appropriate for the Officer to do so. Section 113(c) of the IRPA provides that the factors set out in sections 96 and 97 of the IRPA shall form the basis for consideration of an application for protection.
[27] Upon reviewing the above-noted factors set out in section 167 of the Regulations I am satisfied that the prescribed circumstances were not present in the instant case that would warrant the holding of an oral hearing . The applicants' credibility was not the determining issue of the decision, rather the officer found that the risks to the applicants had not been established on the objective evidence, such as the advances made with the peace process and the existence of an internal flight alternative (IFA) for the applicants. The Officer clearly indicated that even if she had accepted all the evidence adduced by the applicants, it would have been insufficient to warrant a positive finding. As the sufficiency of evidence was the central issue, and no serious issue of credibility was raised, there was no obligation on the part of the officer to hold an oral hearing: Kim v. Canada (MCI), [2003] F.C.J. No. 452, online: QL.
(3) Evidence considered post PRRA submissions
[28] The applicants submit that they filed their PRRA submissions on August 23, 2002, yet in her decision, the Officer relied on information from a UNHCR Press Release dated November 2002, and other documents which post dated the PRRA submissions. The applicants argue that this evidence was significant since it explicitly dealt with changes to country conditions and the applicants ought to have been given the opportunity to address the Officer's perceptions drawn from the reports post-dating their PRRA submissions: Haghighi v. MCI, [200] 4 FC 407; Mancia v. MCI, [1998] 3 FC 461 at paragraphs 26 and 28. The applicants submit that their submissions were filed on August 23, 2002, and circumstances in Sri Lanka had changed around the time of the September talks in Thailand.
[29] I agree that the officer did indeed comment on documentary evidence on general country conditions that only became available after the filing of the applicant's submissions. As noted in Mancia, supra, fairness requires disclosure of such evidence where it is novel and significant and where it is evidence that may affect the decision. In that decision, Justice Décary wrote "... It is only, in my view, where an immigration officer relies on a significant post-submission document which evidences changes in the general country conditions that may affect the decision, that the document must be communicated to that applicant." The list then, is to determine whether the post-submission documents show a change in the general country conditions that may affect the decision.
[30] A review of the post-submission country conditions referred to by the officer in her reasons, do not, in my view, establish a change in country conditions that may affect the decision. In referring to a November 20, 2002 press release by the UNHCR, the Officer wrote:
The UNHCR, in a Press Release dated the 20th of November 2002 states that the UNHCR Commissioner for Refugees appealed for a large sum of money to help Sri Lankans return to their homes. More than 180,000 displaced Sri Lankans have returned to their home this year. The Commissioner Ruud Lubbers states that "The international community must meet the needs of the thousands of Sri Lankans already streaming home and the may more people who look ready to follow". Peace and stability is now present in Sri Lanka and the UN refugee agency is making its presence known more and more since June 2002. There is even an office in Jaffna. It has been reported in this same press release that more than half the returnees this year have return to the Jaffna Peninsula where we know that more than half the population in Jaffna are Tamils. Therefore, the risk that the applicant and his family will face once returned to Sri Lanka and even back to Jaffna is not as he states it to be.
[31] Other documentary sources reviewed by the Officer, which predated the applicants' submissions, demonstrate that there was hope of improvement as a new government came to power in December 2001 with a mandate to revive the peace process. The post-submission documents permit a similar picture of improving conditions in Sri Lanka. If anything, it could be argued that the post-submissions documents serve to further bolster the Officer's conclusion that peace and stability were settling in Sri Lanka in late 2002.
[32] Consequently, I find that since the post-submission documents do not establish a change in general country conditions that may affect the decision, the Officer committed no reviewable error in not disclosing this information to the applicants prior to rendering her decision.
B. Did the Immigration Officer err in law in failing to consider whether the evidence proffered by the applicants on January 20, 2003, ought to cause the officer to reconsider the decision?
[33] The applicants submit that when the Officer received their additional documents on January 20, 2003, after the decision was written and signed, she was required to consider whether the evidence submitted could have led to a reconsideration or re-opening of the decision. The applicants submit that the officer was not functus officio when their additional documents were submitted and erred by failing to consider this additional material.
[34] The respondent argues that the Officer could not consider the information, because the Officer was functus officio since her decision was made 2 months before the applicants submitted further information. The Officer had no obligation, in the inland context, to re-open the application and consider the additional information. The respondent further submits that in the absence of an express grant of jurisdiction by statute, which is absent in this case, an immigration officer does not have the power to reconsider, on new grounds or exercise their discretion anew with regard to decisions that have already been rendered: Dumbrava v. Canada (MCI) (1995), 101 F.T.R. 230; Jiminez v. Canada (MCI) (1998), 147 F.T.R. 199.
[35] The above issues, as to whether the Officer is functus officio, or whether final decisions were rendered on January 23, 2003, or earlier, need only be decided if the additional information adduced, and not considered, on January 20, 2003, was significant to the extent that it may have affected the decision. If the information was not, then the fact that it was not considered by the officer, or an officer, cannot be determinative of the decision. I will therefore consider the information adduced on January 20, 2003 in order to determine its significance in respect to the Officer's decision.
[36] In considering this information I will apply a test similar to that applied in Mancia, supra. In Mancia, fairness requires disclosure of evidence that is novel and significant and where it is evidence that may effect the decision. While, in these circumstances, I am dealing with information that was not considered by the Officer, the information must nevertheless be novel or information that the applicants could not otherwise have adduced at the time of their submissions. It is only this new information that will be considered as to its potential impact on the decision.
[37] It is undisputed that the information adduced by the applicants on January 20, 2003, was not considered by the Officer. The materials filed by the applicants on January 20, 2003, were annexed to a letter from counsel in which counsel reiterated arguments made before the Officer. Counsel attached to his letter numerous newspaper articles and reports from various Human Rights organizations. The materials addressed the risk faced by returnees for having left Sri Lanka on false passports or without National Identity Cards, sexual violence against women by security forces, forcible conscription, fear of extortion and the harsh punishment for resisting extortion, as well as the difficulties in respect to travel and residence in Columbo. The bulk of the information, however, predates the applicants' original PRRA submissions filed on September 5, 2002 and cannot be considered new evidence. Indeed, most of the information adduced on January 20, 2003 was available and could have been adduced by the applicants at, or prior to, the filing of their PRRA submissions. In fact, similar articles were adduced by the applicants in their initial PRRA application, such as "Political Instability Clouds Sri Lankan Peace Process" (ABC Radio Australia News 02/09/2002), "Sri Lanka Braces for Protests at Lifting of Tiger Rebel Ban" (Agence France-Presse, August 26, 2002), and "Sri Lanka Truce Violations Recorded" (BBC News, July 8, 2002). The Officer considered such information before drafting her reasons and concluded that the peace process was not perfect, but was moving in the right direction. In my view, this conclusion was reasonably open to the Officer on the evidence before her at that time.
[38] The information which does post-date the applicants' PRRA submissions consists primarily of articles that deal with ongoing difficulties incurred in instituting the peace process and the resettlement in Jaffha, and though new, it is not significant or significantly different from information contained in the applicants' September 5, 2002, PRRA submissions. The new articles such as "Rebels Continue to Detain Seven Soldiers in Sri Lanka" (Deutsche Presse-Agentur, September 30, 2002,) "Amnesty International urges Sri Lankan Government to Stop Torture" (Associated Press, Nov. 2, 2002,) and "Resettlers Protest Planned Colonization of Tamil Village" (Tamilnet, December 13, 2002,) merely echo articles previously submitted by the applicants, as well as problems that the Officer herself recognized and identified in her reasons. Thus the new materials, do not, in my view, evidence significant changes in general country conditions that may, if considered, have affected the decision. As indicated above the Officer considered similar information and noted in her reasons the challenges facing the peace process in Sri Lanka. It is not for this Court to re-weight this evidence.
[39] I therefore conclude that the information filed by the applicants on January 20, 2003, for the most part, does not constitute new evidence, and that information which is new, is not significant to the extent that it may have affected the decision.
[40] In consequence, I find that the Officer's failure to consider the information would not have materially affected her ultimate decision. This is so, whether she erred in failing to consider the information on January 20, 2003, whether she was functus officio on January 20, 2003, or whether a final decision had been rendered on that date.
C. Did the Immigration Officer err in law in ignoring Ms. Gnanaseharan's circumstances?
[41] The applicants submit that a close review of both the PRRA and H & C decisions indicate that the Officer failed to consider the risks that the female applicant, Ms. Gnanaseharan, might face if returned to Sri Lanka, and lumped her application in with that of her husband. The applicants submit that she was entitled to be assessed in her own right. As a trained nurse she faces a likely risk of being forcibly recruited by the LTTE.
[42] The respondent submits that the applicants failed to make separate submissions with respect to the female applicant's circumstances, thereby precluding a separate assessment by the Officer. In any event, the family's claim was based on the principal applicant's claim and the officer assessed the family as a whole.
[43] I reject the applicants' submissions. The application was of a family unit comprising three individuals. In such cases an Officer does not err in assessing members as a family unit so long as a risk particular to any member of the family unit is also considered in the assessment. I am satisfied that the evidence and circumstances particular to Ms. Gnanaseharan in both the PRRA and H & C applications were properly considered by the Officer in her decisions.
[44] At page 3 of her reasons in the PRAA application, the Officer dealt with Ms. Gnanaseharan's application. In a separate paragraph entitled "Spouse's Claim", the female applicant's experiences with the LTTE and her forced recruitment to give medical treatment were considered. As well, her evidence is considered in the Officer's reasons in a section entitled "Primary Applicant's Claim". Her volunteer efforts, her Certificate of Completion of Level 2 of an English Language Program and her participation in community programs with her son, are all dealt with in the Officer's H & C decision. I find that the Officer did consider Ms. Gnanaseharan's evidence and her particular circumstances and did not err in assessing the alleged risk she may face if returned to Sri Lanka.
D. Did the Immigration Officer ignore or misinterpret evidence?
[45] The applicants submit that the Officer ignored or misinterpreted the evidence in respect to the following issues:
(1) the risk that the applicants would be detained at the airport upon their return;
(2) the letter from the principal applicant's sister;
(3) the findings in respect to the peace process;
(4) the findings in respect to an internal flight alternative.
The respondent submits that there is no evidence that the PRRA Officer failed to consider all of the evidence in respect to these issues. The respondent maintains that it is settled law that an Officer is presumed to have considered all of the evidence it unless it can be shown otherwise. The assessment and weight to be given to the the evidence is a matter within the discretion and expertise of the Officer: Hassan v. MEI (1992), 147 N.R. 317 (FCA).
[46] I will deal in turn with each of the above issues raised by the applicants.
(1) The risk that the applicants would be detained at the airport upon their return
[47] The applicants submit that the Officer ignored evidence that the applicants had illegally travelled to Canada on false passports and as a result, they faced detention in Sri Lanka. The Officer therefore erred in concluding that the risk of the applicants being detained at the airport was low. I am essentially in agreement with the respondent's submissions on this issue. The applicants have failed to establish that the Officer ignored this evidence. Further, the applicants' assertion that they would be detained at the airport is based solely on the principal applicant's evidence that he had heard in the news that rejected asylum seekers are often detained and prosecuted for having left without valid passports. Although it may be inferred from the evidence that returnees may be prosecuted for travelling without proper documentation, there is no evidence that returnees to Sri Lanka who are detained are tortured or subjected to persecution. The evidence does establish that asylum seekers are detained for identity purposes and released. I find the applicants' assertion speculative and not supported by the evidence. The Officer did not ignore or misinterpret the evidence. Her conclusion was reasonably open to her on the evidence. She committed no reviewable error.
(2) The letter from the principal applicant's sister
[48] The principal applicant argues that the Officer misunderstood the letter from his sister. He explains that it was another relative who had lost her husband and son and not his sister. As a result of this misapprehension, the applicants argue that the Officer erroneously questioned the validity of the letter and gave it no weight. The principal applicant suggests that it was his sister-in-law who lost her husband, not his sister. Yet, it is the principal applicant's evidence that it was his sister who wrote the letter, not his sister-in-law. In my view the Officer's determination in respect to the letter is supported by the evidence. I agree with the respondent's submission that the principal applicant, in this proceeding, is attempting to explain away his inconsistent and confusing evidence adduced before the PRRA Officer. The Officer's conclusion was reasonably open to her on the evidence. She committed no reviewable error.
(3) The Officer's findings in respect to the peace process
[49] The applicants state that the Officer misapprehended the documentary evidence with respect to the peace process in Sri Lanka and erred in ignoring the fact that the peace process is not finalized and in finding that there had been a positive change in country conditions in Sri Lanka.
[50] The Officer did not ignore evidence that peace and cease fire are not yet finalized. She recognized in her decision sporadic hostilities in certain areas of the country and that both sides had violated the cease fire agreement. She correctly observed that a new government came into power in 2001 with a mandate to revive the peace process, and the cease fire agreement came into affect February 2002. She relied on objective country documentation which reported that progress towards peace was being made. She noted in November 20, 2002, that the UNHCR appealed for a large sum of money to help Sri Lankans return to their homes, and such initiatives had been ongoing for about a year. There was ample evidence in the country documentation before the Officer, at the time she rendered her decision, to support her conclusion that the situation was improving in Sri Lanka. I therefore reject the applicants' argument. The Officer's finding with respect to country conditions in Sri Lanka was reasonably open to her on the evidence. She committed no reviewable error.
(4) Her finding in respect to an internal flight alternative
[51] The applicants submit that the Officer erred in determining that there was a "possibility" that the applicants could live in Columbo and in consequently concluding that they had an IFA. They argue that the Officer acknowledged that Tamils from the north cannot live in that city without permission. Yet, notwithstanding such a restriction, the Officer speculated that the applicants could live there when they too were Tamils from the North. The applicants submit that the Officer ignored evidence before her of the difficulties encountered by Tamils not from Columbo attempting to settle there, in respect to housing, raids and short term detentions, as well as long term detentions when one does not have the necessary identity documents, as in the case of Mr. Selliah. Further, the officer recognized that families would normally end up separated because of the need for passes and travel restrictions, yet failed to consider the impact of this on whether there was an internal flight alternative in Columbo.
[52] If there is a safe haven for claimants in their own country where they would be free of persecution, they are expected to avail themselves of it unless they can show that it is objectively unreasonable for them to do so: Thirunavukkarasu v. Canada (MEI), [1994] 1 FC 589 (FCA); [1993] FCJ No. 1172. The onus of proof that an IFA is unreasonable rests with the applicants and this is an objective test.
[53] In her consideration of an internal flight alternative, the Officer found that the LTTE does not operate actively in the entire country in the same manner. She found, based on the country documentation, that many Tamils live in Columbo and conduct their lives in relative peace. She recognized that there was sporadic violence, but there is a generalized risk that is faced by the entire population. The Officer noted that a 2002 US DOS report stated that the Constitution grants every citizen freedom of movement and the government generally respects this. However, the Officer also noted that tighter restrictions had been imposed on travellers, and checkpoints had the affect of somewhat restricting the movement of people in these areas and required them to obtain a police pass. Often families would be separated as they would not be able to leave at the same time. Finally, the officer noted that in 1995 the LTTE began to allow people to move more freely into government controlled areas and many Tamils left their homes in the North and moved South to avoid the violence.
[54] In my view, there was sufficient evidence upon which the officer could conclude that, at the time of her decision, Columbo provided an IFA for Tamils from the North generally, and that in the circumstances of the applicants' case, it would not be unreasonable for the family to seek refuge there. Indeed, the evidence shows that the applicants had lived in Columbo. In concluding as she did on the IFA, I am unable to deduce from the record that the officer adopted any wrong principle or otherwise erred in reaching that conclusion.
E. Did the Immigration Officer apply the wrong standard of assessment under section 97 of IRPA?
[55] The applicants submit that the Officer erred in applying a "balance of probabilities" test in determining that they are not persons in need of protection under section 97 of the IRPA. They argue that the Officer should have applied the same test that is applied for the determination of risk under section 96 of the IRPA. The federal Court of Appeal in Adjei v. MEI, [1989] F.C.J. No. 67, online: QL, set the test applicable for the determination risk under section 96 to be: "...whether there is a serious possibility of risk."
[56] While the applicants concede that the English version of section 97 of the IRPA, "believed on substantial grounds" might be interpreted to establish a balance of probabilities test, they argue that this is not determinative of the issue and that the French version, "... , s'il y a des motifs sérieux de le croire, ..." applies a test of "serious reasons to believe" which is less than a balance of probabilities standard. It is submitted that such a standard is consistent with the standard set by the Court of Appeal for risk determinations under section 96 of the IRPA and better reflects the purpose and objectives of the legislation. A consistent standard is preferable for both sections, given that both relate to similar risks. The applicants further submit that since the PRRA provisions are remedial they must be given a "fair, large and liberal construction" (Interpretation Act, RSC 1985, C.1-21, s.12), to best ensure the attainment of the objectives set out in the IRPA. This interpretation is also consistent with international standards.
[57] Finally, the applicants argue that it could not have been Parliament's intention to deny protection to a person who faces only a 48% chance of being tortured, rather than a 51% chance. This would be the result if a balance of probabilities standard were to be applied. Based on the above arguments, the applicants submit that the Officer erred in law when she applied a balance of probabilities standard to her section 97 analysis.
[58] This very issue and above arguments raised by the applicants were dealt with comprehensively by Madam Justice Gauthier in Li v. Canada(MEI), [2003] F.C.J. No. 1934, online: QL. In that case the learned Justice equated the "believed on substantial grounds to exist" test to a balance of probabilities test. In her reasons she found that: "...pursuant to subsection 97(1) of the Act [IRPA], there must be persuasive evidence (ie. balance of probabilities) establishing the facts on which a claimant relies to say that he or she faces a substantial danger of being tortured upon his or her return." Recognizing that this issue had yet to be addressed by the Court of Appeal and finding it to be a question of general interest, the learned Judge on her own volition, certified the following question: "Does section 97 of the Act [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) ? " There has yet to be a determination of the question by the Federal Court of Appeal.
[59] I have concluded that I ought to adopt and apply, for reasons of judicial comity, the decision of Madam Justice Gauthier in Li, supra, to the extent that it decides the issue of the test applicable to section 97 of the IRPA, an issue raised in this proceeding. I am satisfied that the relevant material facts in Li, supra, are not distinguishable from those in the present case, or that Madam Justice Gauthier was not manifestly wrong in that she overlooked a statutory provision or a relevant case: See Ahani v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No.1005, online: QL.
[60] I agree with Madam Justice Gauthier that this is a question of general importance, and that it could be determinative of an appeal. Therefore, in order to preserve the applicants' rights on appeal, I will grant their request for certification of a general question. The question will be formulated in my Order which will follow these reasons.
Conclusion
[61] For the above reasons, the judicial review of the PRRA decision will be dismissed.
II. IMPUGNED HUMANITARIAN & COMPASSIONATE DECISION
[62] I will now turn to the judicial review application of the negative H & C decision rendered by the same Officer on November 26, 2002. The background facts in this application are essentially the facts summarized earlier in these reasons in respect to the PRRA application. In addition to the facts relevant to the applicants' risk assessment, the Officer had before her evidence dealing with their integration in Canadian society which is not in dispute.
[63] The Officer noted that the principal applicant stated he had a history of harassment from the LTTE and other Tamil organizations when he was a student in the late 1980s. He operated a private school in 1995 and when he moved to Madduvil with his wife and sister he learned that his institute had been destroyed by the Sri Lankan Forces. His sister went missing and his wife was taken by the LTTE to work as a nurse. Both husband and wife later moved to Colombo where the principal applicant was arrested in 2000 by Sri Lankan police. He was released on conditions, and the family fled Sri Lanka for Canada.
[64] The Officer noted that the principal applicant had found work as a book-keeper for "AKK Depanneur" in January 2002 and to corroborate his employment submitted two pay stubs dated February and March 2002. There was no evidence confirming that he was still employed at the shop. The Officer concluded, in any event, "... that the simple fact of being employed in Canada is not sufficient to warrant an exemption to his obligation for his permanent residence outside Canada."
[65] The volunteer work performed by the principal applicant was also considered by the Officer. He participated in a tax clinic for the year 2001; he and his wife volunteered with the Children's Wish Foundation; he taught English on a volunteer basis, and he also "followed a French Language Course and has a certificate dated the 28th of March 2002 attesting to this."
[66] The Officer noted that the applicants have a 4-year old son who had participated in a social program along with his mother. The Officer found that, considering the young age of the son and the fact that he was not yet old enough to attend school, he would not face undue hardship if returned to Sri Lanka. The Officer stated that she followed the criteria relating to the best interest of the child, in considering the son's claim.
[67] The Officer noted that the male applicant claimed that he would be persecuted on return to Sri Lanka and that his wife would be taken to work for the LTTE. The Officer stated that she was not satisfied that the principal applicant would be particularly targeted by the LTTE or the police on his return. She also noted that the fighting between the government and the LTTE had diminished and that peace talks were underway. The Officer stated that the applicants might have an internal flight alternative in Colombo, where the LTTE does not operate freely, and that she did not find that there was a personalized risk from the Sri Lankan police in Colombo. The Officer stated that, despite documentation submitted by the applicants concerning troubling events in Sri Lanka, the general atmosphere in the country seemed to be moving in a positive direction.
[68] The Officer found that the principal applicant had not established a reasonable chance of being persecuted for reasons of political opinion and would not suffer undue hardship by having to return to Sri Lanka to apply for permanent residence with his spouse and child. The Officer found the simple fact that the principal applicant was employed in Canada and the volunteer work performed by the applicants were not sufficient to demonstrate integration in Canadian society so as to warrant granting an exemption under subsection 25(1) of the IRPA. Consequently, the application was denied.
Standard of Review
[69] The standard of review for H & C decisions by visa officers was established by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. The applicable standard in reviewing an H & C decision is reasonableness simpliciter.
Issues
[70] The applicant raises the following issues in respect to the H & C application:
A. Did the Officer breach the duty of fairness by failing to disclose the PRRA decision prior to rendering the H & C decision?
B. Did the Officer err in failing to consider the evidence submitted by the applicants on January 20, 2003?
C. Did the Officer err in law in ignoring the female applicant's circumstances?
D. Did the Officer make an unreasonable decision concerning the minor applicant?
E. Did the Officer ignore or misinterpret evidence?
Analysis
A. Did the Officer breach the duty of fairness?
[71] The applicants note that the Officer who made the PRRA decision also made the impugned H & C decision at the same time. The applicants submit that the Federal Court of Appeal has held that procedural fairness requires that a negative risk assessment by a Post-Claim Determination Officer (PCDO) must be disclosed to an applicant prior to the rendering of an H & C decision that is based on the PCDO decision: Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 FC 407, [2000] F.C.J. No. 854, online: QL. The Court found this duty exists even when the information relied upon by the officer is submitted by or reasonably available to the applicant.
[72] The applicants submit that the circumstances of this case raise a novel point because the PRRA and H & C decisions were made by the same immigration Officer, rather than by two different officers. They nevertheless argue that since two separate decisions were involved, fairness required that the applicants be informed of the negative PRRA decision, and given an opportunity to respond before a decision was rendered on the H & C application.
[73] As stated, the Officer who conducted the risk assessment and made the PRRA decision also made the decision on the H & C application. Both decisions were rendered on the same day. The applicant is correct in noting that there are divergent views in this Court as to whether there is a duty to disclose a risk assessment report when there is only one decision maker for both the risk assessment and the H & C application.
[74] In Haghighi, supra, the applicant, a Moslem convert to Christianity, was not informed of a PCDO report indicating that he did not face a serious risk of torture. The officer making the H & C decision based her decision in part on the negative risk assessment made by the first officer. The Court of Appeal answered in the affirmative the following question; "When an H & C claim is based, at least in part, on a fear of persecution in the applicant's country of origin, is the immigration officer responsible for making the discretionary decision required to disclose to the applicant a negative risk assessment report received from another officer, and to give the applicant an opportunity to respond to it before the final decision is made?" Mr. Justice Evans held at paragraphs 37 and 38 of his reasons:
37. In my opinion, the duty of fairness requires that inland applicants for H & C landing under subsection 114(2) be fully informed of the content of the PCDO's risk assessment report, and permitted to comment on it, even when the report is based on information that was submitted by or was reasonably available to the applicant. Given the often voluminous, nuanced and inconsistent information available from different sources on country conditions, affording an applicant an opportunity to comment on alleged errors, omissions or other deficiencies in the PCDO's analysis may well avoid erroneous H & C decisions by immigration officers, particularly since these reports are apt to play a crucial role in the final decision...
38. In view of the potentially grave consequences for an individual who is returned to a country where, contrary to the PCDO's report, there is a serious risk of torture, the increased accuracy in the decision likely to result from affording the respondent the procedural right sought here justifies whatever administrative delays might thereby be occasioned....
[75] In Mia v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1150, [2001] F.C.J. No. 1584, online: QL, Mr. Justice McKeown distinguished Haghighi, supra, on the following basis:
With respect, I disagree that the principles of fairness require a PCDO conducting a risk assessment to determine if the applicant is a member of the PDRCC class to disclose the risk assessment prior to making his decision. In my view, this would be tantamount to a decision-maker being required to provide its reasons for the decision for comment prior to making the final decision. This is a case where the person who reviewed the evidence made the decision. No one else was involved. This is not a case where the decision maker is receiving input from other persons than the applicant. Further, I note that Haghighi dealt with an application under humanitarian and compassionate grounds. ... [Emphasis added]
Mr. Justice McKeown held that the risk requirements for H & C decisions established in Haghighi, supra, did not extend to PDRCC determinations notwithstanding the opposite conclusion reached by Mr. Justice Lemieux in Soto v. Canada (Minister of Citizenship and Immigration) 2001 FCT 818, [2001] F.C.J. No. 1207 online: QL. Mr. Justice McKeown reasoned that as there was only one decision maker and one decision in a PDRCC application, the disclosure of a risk assessment was tantamount to providing reasons for the decision before it was delivered. Mr. Justice McKeown stressed that the reasoning in Haghighi, supra, applied only to H & C applications, and that the release of risk assessments should be limited to the H & C process.
[76] This reasoning was also followed in Chen v. Canada (Minister of Citizenship and Immigration) (T.D.) [2002] 4 F.C. 193, [2002] F.C.J. No. 341 online: QL, wherein Mme Justice Hansen reiterated that the holding in Haghighi, supra, must be limited to the facts upon which it was based. In Mme Justice Hansen's assessment, disclosure was required in Haghighi because the case dealt with a H & C application, and the Court was of the view that immigration officials were likely to give "decisive weight" to the opinions of PCDOs as a result of their relative expertise in assessing risk. She held that in a PDRCC application the risk analysis comprised the reasons for the decision under review, and that to require the release of risk assessments was to require decision makers to release draft reasons prior to their decisions.
[77] In Majerbi v. Canada (Minister of Citizenship and Immigration), 2002 FCT 878, [2002] F.C.J. No. 1145, online: QL, Mr Justice Blais followed the reasoning in Mia and Chen, supra, even though the case involved a H & C application. Mr. Justice Blais held that an immigration officer who made both the risk assessment and the H & C determination did not have a duty to disclose a risk assessment. In Majerbi, supra, Mr. Jusice Blais distinguished Haghighi, supra, on the following grounds: First, the analysis of the risk of return was made by the same immigration officer, not by a third party as was the case in Haghighi, and was therefore part of a final decision. Second, to require the risk assessment to be disclosed would "...amount to requiring administrative decision makers to provide a draft of their decisions to plaintiffs before making a final decision, ...". Mr. Justice Blais also noted that the Court of Appeal in Haghighi, was careful to state that disclosure of the PCDO report should not be used by applicants as a pretext to reargue their case to the immigration officer.
[78] I agree that Haghighi can be distinguished. Haghighi dealt with circumstances that involved two decision makers, with different responsibilities, and arguably different levels of expertise with respect to risk assessment. In such circumstances affording an applicant an opportunity to comment on alleged errors, omissions or other deficiencies in the PCDO's analysis may well avoid an erroneous H & C decision. In the instant case, the legislation has changed and the circumstances are different. The immigration officer who conducted the risk assessment was also seized with the H & C application. Under such circumstances, I am not convinced that to ensure fairness there is a need to disclose a risk assessment to an applicant before an H & C decision is rendered by the same officer. I therefore agree with the views expressed by Justices McKeown, Hanson and Blais in the above cited cases. In the particular circumstances of this case, there was no duty on the Officer to disclose the results of the PRRA prior to rendering a decision on the H & C application. The Officer did not breach the duty of fairness.
[79] Under the rubric of procedural fairness, the applicants also submit that the Officer had a duty to clarify whether the principal applicant was still employed, rather than conclude negatively that he may not still be employed. The respondent argues that the Officer simply noted that there was no evidence that the principal applicant was currently employed. The respondent further submits that nothing turns on this fact since the Officer concluded that the principal applicant's job was not, in itself, sufficient to establish a significant link with Canadian society.
[80] I agree in essence with the respondent's position. There was no duty on the Officer to request that the male applicant supplement the documentation in his application. The onus is on the applicants to adduce the necessary evidence to satisfy the Officer that an exemption under s. 25(1) of the IRPA is warranted. Further, even if the Officer erred by failing to clarify the principal applicant's employment status, the error is not reviewable. The Officer's conclusion that "the simple fact of being employed is not sufficient" to establish H & C grounds, was reasonably open to the Officer on the evidence. Consequently, the Officer's failure to request supplementary documentation, even if in error, does not warrant the Court's intervention.
[81] The applicants further submit that the Officer erred in drawing negative credibility conclusions and "relying in large part on the reasoning of the Refugee Division". On a reading of the Officer's notes, I do not find any reference to or reliance on negative credibility conclusions made by the Refugee Division. It is the PRRA decision which contains references to the adverse credibility findings made by the Immigration and Refugee Board, and I have dealt with this issue earlier in my reasons in my review fo the PRAA decision. The applicants' arguments on this point are not appropriately framed in the context of this review.
[82] Finally, the applicants note that the Officer relied on documents from 2002, post dating the applicants' PRRA submissions. Again, this issue has been dealt with earlier in these reasons in respect to the PRRA application.
B. Did the Officer err in law in failing to consider whether the evidence submitted by the applicants on January 20, 2003 should cause her to reconsider the decision?
[83] The applicants argue that the evidence submitted on January 20, 2003, ought to have caused the Officer to reconsider her H & C decision. The applicants note that though the Officer was no longer at the particular immigration office by January 2003, they submit that visa officers have the authority to reconsider decisions that are made by previous officers, and that their decisions are not functus officio. The following authority is cited in support of this proposition: Lo v. Canada (Minister of Employment and Immigration), 2002 FCT 1155, [2002] F.C.J. No. 1596 online: QL at paragraphs 32 and 33.
[84] This issue was dealt with at length earlier in these reasons in respect to the application for judicial review of the PRRA decision. The information submitted by the applicants on January 20, 2003, was summarized at paragraph 37 of these reasons, and relates essentially to the applicants' risk of return to Sri Lanka. In my review of the Officer's PRRA decision, I concluded that the information filed by the applicants on January 20, 2003, for the most part did not constitute new evidence, and the information that was new was not significant to the extent that it could have affected the PRRA decision. In consequence, I found that the Officer's failure to consider the information was not a reviewable error.
[85] This same reasoning applies to the H & C decision. The PRRA decision was one of a number of factors taken into account by the Officer in conducting the H & C assessment. Since the new information could not have materially affected the PRRA decision, and the new evidence was essentially in relation to the applicants' risk assessment, it follows that the new information, even if it had been considered by the Officer, could not have materially affected the H & C decision. In consequence, the Officer did not commit a reviewable error by failing to consider the additional information filed by the applicants on January 20, 2003.
C. Did the Officer err in law in ignoring the female applicant's circumstances?
[86] The applicant argues that the Officer failed entirely to consider the risk that the female applicant might face if returned to Sri Lanka, and merely lumped her into her husband's claim. I disagree. The Officer's decision contains a separate paragraph entitled "Spouse's Claim" which refers to the female applicant's specific history while in Sri Lanka. The Officer mentions that the female applicant was taken by the LTTE to provide medical services, was stopped by the police and harassed and molested at the police station. The decision acknowledges her activities in Canada, her volunteer work, her completion of English language programs, and her participation in community programs with her son. I find that the Officer did consider the evidence adduced in respect of the female applicant. I also find that the Officer's determinations with respect to the female applicant's risk and integration in Canadian society were reasonably open to her on the evidence. I can find no reviewable error in the Officer's assessment of the female applicant.
D. Did the Officer make an unreasonable decision concerning the minor applicant?
[87] The applicants argue that the Officer downplayed the minor applicant's best interest, and failed to consider that there are serious health risks for children in Sri Lanka.
[88] There is no evidence of a specific health threat to the minor applicant should he be returned to Sri Lanka. I am of the view that the Officer's decision concerning the minor applicant is not unreasonable. The Officer assessed the child separately from his parents, considered his young age, that he had not attended school, that he had limited integration in Canadian society, and concluded that the minor applicant would not face undue hardship if he were returned to Sri Lanka to make an application for his permanent residence with his parents. I am satisfied that the Officer was alive to the best interest of the minor applicant and committed no reviewable error in assessing the child's claim.
E. Did the Officer ignore or misinterpret evidence?
[89] The applicants state that the Officer incorrectly concluded that the risk of the applicants being detained at the airport was low and ignored evidence that they had travelled to Canada on false passports and as a result faced detention in Sri Lanka upon their return. The Officer's conclusion that the risk of the applicants being detained at the airport was low is not found in the H & C decision, but rather in the PRRA decision. The issue was comprehensively dealt with in my review of the PRRA decision and my earlier analysis and findings are applicable to the within proceeding.
[90] The applicants submit that the Officer erred in holding that they could return and live in Colombo, ignoring evidence that Tamils from the north cannot live in that city without permission. Again, this issue has been dealt with earlier in these reasons in my review of the PRRA decision and need not be revisited. My analysis and determination remain applicable.
[91] The applicants also argue that the Officer took issue with the letter from the principal applicant's sister concerning the killing of a male relative. I find no reference in the Officer's H & C notes to this matter. The issue is raised in the PRRA decision and I have dealt with it earlier in these reasons, in my review of that decision. My analysis and determination remain applicable.
[92] Finally, the applicants state that the Officer erred in ignoring the fact that the peace process is not finalized and erred in finding that there had been a change in country conditions. I reject this submission. The Officer's decision and reasons state that "a positive atmosphere is seen to have been established among the people of the country and the northern part of Sri Lanka is slowly seeing a return to normalcy." The Officer recognized the troubling events that occur in Sri Lanka but found that the general atmosphere in the country seems to be moving into a positive direction. This finding is supported by the documentary evidence and was reasonably open to the Officer at the time she rendered her decision.
[93] The applicants have not established that the Officer ignored or misconstrued evidence in rendering her decision on the H & C application. I find that no reviewable error was committed by the Officer in considering the H & C application.
Conclusion
[94] For the above reasons, the application for judicial review of the H & C decision will be dismissed.
Certification
[95] The applicants ask the Court to certify the following three questions which they submit are serious questions of general importance:
1. In the context of an application under the pre-removal risk assessment program and/or a humanitarian and compassionate application, does the duty of fairness require an officer to clarify with an applicant evidence about which the officer is not clear.
2. Where an immigration officer has made a decision in respect of a pre-removal risk assessment application and/or a humanitarian and compassionate application, is an officer functus, such that further evidence may not be considered to determine if it might lead the officer to reach a different conclusion.
3. Does s. 97 of the 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)or (b).
[96] With respect to the first question, I determined that the Officer did not misinterpret the evidence and even if she had, I am satisfied that nothing turned on the Officer's findings in respect of the points at issue. Consequently, even if an error was committed, it would not have been material. As a result the question raised cannot be determinative of an appeal and will not be certified.
[97] With respect to the second question, I determined that the Officer's failure to consider the further information would not have materially affected her ultimate decision. This is so, whether she erred in failing to consider the information on January 20, 2003, whether she was functus officio on January 20, 2003, or whether a final decision had been rendered on that date. Given these findings the second question cannot be determinative of an appeal and will not be certified.
[98] As indicated earlier in these reasons, I am satisfied that the third question by the applicants is a serious question of general interest which may be determinative of an appeal and will consequently be certified.
ORDER
THIS COURT ORDERS that:
1. The applications for judicial review are dismissed.
2. The following question is certified:
Does section 97 of the 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) or (b)?
"Edmond P. Blanchard"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-656-03 and IMM-661-03
STYLE OF CAUSE: Gnanaseharan Selliah et al. V. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 26, 2003 for IMM-656-03
April 5, 2004 for IMM-66-03
REASONS FOR ORDER BY: BLANCHARD, J.
DATED: June 17, 2004
APPEARANCES BY:
Ms. Barbara Jackman For the applicants
M. Marcel Larouche For the respondent
SOLICITORS OF RECORD:
Ms. Barbara Jackman For the applicants
3 - 596 St. Clair Avenue West
Toronto, Ontario, M6C 1A6
Morris Rosenberg For the respondent
Deputy Attorney General of Canada
Toronto, Ontario, M5X 1K6