Date: 20050429
Docket: IMM-9693-03
OTTAWA, Ontario, April 29th, 2005
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
THAIYALNAYAKI RASIAH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a Pre-Removal Risk Assessment decision dated October 27, 2003 in which it was determined that the applicant would not be at risk if returned to Sri Lanka.
FACTS
[2] The applicant is a 77 year-old Tamil from Jaffna, in the north of Sri Lanka. She arrived in Canada on October 5, 2001 as a visitor, and claimed refugee status on October 18, 2001. The applicant's claim was denied by the Immigration and Refugee Board in May 2002, and leave to apply to the Federal Court for judicial review was also denied.
[3] The applicant then applied on May 30, 2002 for permanent residency as a member of the Post-Determination Refugee Claimants in Canada class, which, with the coming into force of the Immigration and Refugee Protection Act, (IRPA), was converted into a Pre-Removal Risk Assessment (PRRA). In September 2003, the applicant made additional submissions in support of the PRRA application and provided updated documentary evidence. In particular, she claimed that she would face a mandatory jail sentence under Sri Lanka's Immigrants and Emigrants (Amendment) Act for having left the country illegally and that she would be a likely target for extortion and abduction attempts in the northern region. Additionally, she claimed that it would be unreasonable for her relocate to the capital, Colombo, because she is elderly and no longer has family members there.
[4] In a decision dated October 27, 2003, a PRRA Officer concluded that the applicant would not be at risk if returned to Sri Lanka.
THE PRRA DECISION
[5] The PRRA decision addressed each of the main points raised by the applicant. With respect to the Immigrants and Emigrants (Amendment) Act, the Officer found that an unsuccessful refugee claimant is not at risk of prosecution unless she is entering Sri Lanka with false travel documentation. In the present case, the applicant had left Sri Lanka with a valid passport and could return with the same passport. Thus it was unlikely that she would be charged under the Act.
[6] As to the threat of abduction or extortion, the Officer concluded that the applicant would likely have to pay a small tax if she returned to the northern region and might be required to make extortion payments. However, there was only a mere possibility that she would be abducted or killed by extortionists.
[7] Lastly, the Officer considered whether the applicant would have an adequate internal flight alternative (IFA) in the city of Colombo, where she had lived for nine years before coming to Canada. It was noted that the applicant no longer had family in Colombo and, at the age of 77, she could not be expected to work to support herself. However, the Officer found that since he had no information about the applicant's financial resources or the state resources available to assist her, he was not in "a position to conclude that return to Sri Lanka would be unreasonable in light of all the circumstances." The fact that the applicant no longer had family in Sri Lanka was, by itself, insufficient to render the IFA unreasonable.
Applicant abandoned argument at the hearing
[8] At the hearing, the applicant abandoned the argument that she would face a mandatory jail sentence under Sri Lankan law for having left the country illegally. The only issues raised by the applicant at the hearing are set out below.
ISSUES
1. Did the PRRA Officer err in concluding that the applicant had the burden of demonstrating that the IFA was unreasonable?
2. Was the PRRA Officer required to provide draft reasons to the applicant or to the applicant's counsel before a final decision was rendered?
ANALYSIS
[9] The PRRA decision is 21 pages, and contains a narrative which meanders, and is sometimes unclear. The decision also considers factors which are more appropriate for a humanitarian and compassionate application (H & C application) such as whether the applicant has the financial resources to support herself in Sri Lanka where she has no remaining children. (The applicant, a widow, has three sons in Canada.) However, the decision does thoroughly assess the current country conditions in Sri Lanka, and concludes at page 18 of the decision:
1. the risk to the applicant's life should she return to LTTE-held territory in the north is "not a serious possibility", only "a mere possibility";
2. if the applicant returned to Colombo, "her risk at the hands of the LTTE in Colombo is remote";
The decision also states at page 19:
3. returning to the LTTE-held territory in the north is "problematic" because of "land-mines, High Security Zones, destroyed or occupied houses, ... LTTE taxation ..."; and
4. since returning to the north is "problematic", it is more appropriate to consider Colombo as a reasonable place to return. However, the PRRA Officer cannot assess whether the applicant could support herself in Colombo where she has no family. Accordingly, the PRRA Officer cannot assess whether Colombo is a reasonable IFA for the applicant because the applicant has not provided information about her personal financial resources.
[10] This PRRA decision is contradictory at worst and unclear at best. The Officer finds that returning to the LTTE-held territory in the north is "problematic" because the applicant will probably be extorted by the LTTE. However, the PRRA Officer also states that he cannot assess whether Colombo is a reasonable IFA for the applicant because the applicant has not provided information about her personal financial resources. It is for this reason that the applicant raises the first issue discussed below.
Issue No. 1
Did the PRRA Officer err in concluding that the applicant had the burden of demonstrating that the IFA was unreasonable?
[11] The Federal Court of Appeal has held that the applicant bears the onus of proving that an IFA is unreasonable. See Minister of Citizenship and Immigration v. Ranganathan (2000), 266 N.R. 380 at paragraph 13 per Létourneau J.A.
¶ 13 The absence of relatives in the safe area where a claimant finds refuge in his home country is an issue that was canvassed by this Court in the case of Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589. Speaking for the Court, Linden J.A. wrote at pages 597 and 599 of the decision:
Thus, IFA must be sought, if it is not unreasonable to do so, in the circumstances of the individual claimant. This test is a flexible one, that takes into account the particular situation of the claimant and the particular country involved. This is an objective test and the onus of proof rests on the claimant on this issue, just as it does with all the other aspects of a refugee claim. Consequently, 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. (Emphasis added.)
Accordingly, the applicant must present evidence to demonstrate why Colombo is not a reasonable IFA.
[12] In Ranganathan, supra, the Federal Court of Appeal also held at paragraph 14:
...[m]ore than the mere absence of relatives is needed in order to make an IFA unreasonable. Indeed, there is always some hardship, even undue hardship, involved when a person has to abandon the comfort of his home to live in a different part of his country where he has to seek employment and start a new life away from relatives and friends.
[13] There is a very high threshold for the unreasonableness test of an IFA. Mr. Justice Létourneau continued at paragraph 15:
... It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions. The absence of relatives in a safe place, whether taken alone or in conjunction with other factors, can only amount to such condition if it meets that threshold, that is to say if it establishes that, as a result, a claimant's life or safety would be jeopardized. This is in sharp contrast with undue hardship resulting from loss of employment, loss of status, reduction in quality of life, loss of aspirations, loss of beloved ones and frustration of one's wishes and expectations.
Accordingly, the applicant must establish the existence of conditions that would jeopardize her life and safety if relocated to Colombo. In my view, the applicant has failed to do so. The absence of relatives in Colombo is only pertinent if it would jeopardize her life and safety.
The PRRA Decision blurs the distinction between a PRRA application and a humanitarian and compassionate application
[14] The reasonableness of an IFA relates to risk, not humanitarian and compassionate considerations. In Ranganathan, supra, the Federal Court of Appeal warned that fear of persecution (and risk to life), not humanitarian considerations such as economic and emotional support, are relevant to a reasonable IFA. The Court held at paragraph 16:
... To expand and lower the standard for assessing reasonableness of the IFA is to fundamentally denature the definition of refugee (or PRRA applicant): one becomes a refugee (or successful PRRA applicant) who has no fear of persecution and who would be better off in Canada physically, economically and emotionally than in a safe place in his own country.
[15] The Court of Appeal warned about creating confusion by blurring the distinction between different types of applications under IRPA. The purpose of a PRRA application is to assess whether the applicant is in need of protection in Canada because removal to her country of nationality would subject her personally to a danger of torture, a risk to her life or to a risk of cruel and unusual treatment or punishment. In the case at bar, the PRRA decision clearly concludes that the applicant is not a person in need of protection from such dangers and risks. Accordingly, the PRRA decision incorrectly states that the applicant should have provided information about her personal financial resources in order to assess the reasonableness of Colombo as an IFA.
[16] The applicant is a 77 year-old widow with no family left in Sri Lanka. She has three sons in Canada and wants to stay in Canada with them where they will support her. The guidelines applicable to humanitarian and compassionate applications are generous and flexible. In the Court's view, and in the view of counsel for the respondent, the H & C guidelines may be of assistance to the applicant should she decide to make such an application. As the Federal Court of Appeal held in Ranganathan, supra, at paragraph 17:
... The more humanitarian grounds are allowed to enter the determination of a refugee claim (and PRRA application) the more the refugee procedure (and PRRA procedure) resembles and blends into the humanitarian and compassionate procedure. As a result, the more likely the concept of persecution (and risk in the PRRA application) is to be replaced in practice by that of hardship in the definition of refugee.
[17] Accordingly, the PRRA officer should focus his assessment on risk, not on whether the applicant has the personal financial resources to care for herself in Colombo.
[18] While the PRRA decision is unnecessarily long, sometimes unclear and raises issues irrelevant to a risk assessment, it does assess the risk to the applicant of returning to Sri Lanka both in the north and in Colombo. It is clear that Colombo is a "safe haven" or an IFA for the applicant.
Issue No. 2
Was the PRRA Officer required to provide draft reasons to the applicant or the applicant's counsel before a final decision was rendered?
[19] The applicant submits that the PRRA officer erred in not providing a draft decision to the her before the final decision was made. The applicant relies upon a decision of this Court in Soto v. Minister of Citizenship and Immigration, [2001] F.C.J. No.1207 (F.C.T.D.). Since that decision was rendered, the overwhelming and clear jurisprudence of this Court is that there is no obligation on the PRRA officer to provide the applicant with draft reasons. See for example: Navaratnam v. Canada (Solicitor General), [2005] F.C.J. No.14 (F.C.) at paragraphs 11 to 15 per O'Reilly, Vasquez v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 96 (F.C.) at paragraphs 16 to 28 per Russell J., Selliah v. Canada (Minister of Citizenship and Immigration) (2004), 256 F.T.R. 53 (F.C.) per Blanchard J. and Akpataku v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 862 (F.C.) per Mactavish J.
[20] The applicant requested that the Court certify a question for an appeal. The respondent opposed certifying the question because it has been settled.
[21] The Court does not consider this a serious question of general importance which should be certified. The issue has been decided by this Court on eleven occasions. On all occasions the Court has ruled the duty of fairness does not require the disclosure of the draft risk assessment report so that the applicant can correct perceived errors or omissions. Correcting such errors or omissions is possible on judicial review. Requiring every PRRA decision to be circulated in draft would encumber and delay the already cumbersome and slow PRRA application process. Accordingly, the Court will not certify such a question.
CONCLUSION
[22] While the PRRA decision under review has a number of mistakes, none warrants the intervention of the Court. On the evidence before the PRRA Officer, the PRRA decision reasonably concluded that Colombo was an adequate internal flight alternative for the applicant. The issue of whether the applicant can support herself financially and emotionally in Colombo is not properly the subject of a Pre-Removal Risk Assessment. It is more properly the subject of an H & C application, which the applicant may consider making.
[23] For these reasons, this application for judicial review will be dismissed.
ORDER
THIS COURT ORDERS THAT:
1. This application for judicial review is dismissed; and
2. No question of general importance is certified.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-9693-03
STYLE OF CAUSE: THAIYALNAYAKI RASIAH
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, APRIL 21, 2005
REASONS FOR ORDER
AND ORDER BY: KELEN J.
APPEARANCES BY: Mr. Kumar S. Sriskanda
For the Applicant
Ms. Kareena R. Wilding
For the Respondent
SOLICITORS OF RECORD: Kumar Sriskanda
Barrister & Solicitor
Scarborough, Ontario
For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20050429
Docket: IMM-9693-03
BETWEEN:
THAIYALNAYAKI RASIAH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER