Ottawa, Ontario, Wednesday the 3rd day of August 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
and
THE SOLICITOR GENERAL OF CANADA
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] Mrs. Ponnammah Kandiah is a citizen of Sri Lanka of Tamil ethnicity. She brings this application for judicial review of the decision of a Pre-Removal Risk Assessment officer ("officer") rejecting Mrs. Kandiah's application for a Pre-Removal Risk Assessment ("PRRA").
THE FACTS
[2] Mrs. Kandiah is an 85-year old widow, with seven children. One of her children lives in Canada, while the remaining six children live in Holland, Denmark, the United Kingdom, Italy and India. She came to Canada on October 29, 1998 as a visitor, and made a refugee claim on May 31, 1999 which was denied on August 29, 2000. In rejecting her claim, the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") accepted Mrs. Kandiah's testimony that she had been extorted by the Liberation Tigers of Tamil Eelam ("LTTE"), but found that she would have an internal flight alternative in Jaffna because the CRDD was not prepared to speculate as to whether the LTTE would take control of Jaffna.
[3] In Mrs. Kandiah's PRRA submissions, she argued that if returned to Sri Lanka she would face serious risks, including: extortion and abduction; severe treatment at the hands of the security forces; LTTE demands for her services; and the general conditions of insecurity which threaten the safety of Tamils in every part of the country.
THE DECISION
[4] The officer, in her decision, began by setting out Mrs. Kandiah's circumstances and reviewing the general evidence before her with respect to the prevailing country conditions in Sri Lanka, including the fact that in February of 2002 a ceasefire agreement was signed between the government of Sri Lanka and the LTTE. The officer observed that the "current ceasefire has held for over two years and has brought relief and tranquility, with a variety of accompanying benefits, to the country".
[5] With respect to the specific risk of extortion, the officer wrote:
Documentary evidence, including that submitted by the applicant, suggests the LTTE does extort money from some Tamils, however, the evidence does not suggest the current level of extortion by the LTTE could amount to persecution. Even if the LTTE made extortion demands on the applicant which were persistent, repetitive and harmful, the applicant could inform the Sri Lankan Monitoring Mission (SLMM) who would investigate that violation of the MOU. Information from Human Rights Watch, suggests the SLMM has increasingly addressed complaints of abuse against civilians including extortion.
The applicant has provided insufficient, persuasive evidence that she is personally at risk of threat of recruitment for services by the LTTE. I am not persuaded that an 84-year old Tamil female who has been outside of Sri Lanka since October 1998 is likely to be of interest to or be the subject of reprisals from the LTTE or the Sri Lankan authorities. The applicant has provided insufficient, persuasive evidence to support her fear of personalized risk in Sri Lanka.
While conditions in Sri Lanka are not ideal, I am not persuaded the applicant is a person described in Section 96 or 97 of the Immigration and Refugee Protection Act.
THE STANDARD OF REVIEW
[6] As to the appropriate standard of review to be applied to a decision of a PRRA officer, in Kim v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 540, Mr. Justice Mosley, after conducting a pragmatic and functional analysis, concluded "the appropriate standard of review for questions of fact should generally be patent unreasonableness, for questions of mixed law and fact, reasonableness simpliciter, and for questions of law, correctness". Mr. Justice Mosley also endorsed the finding of Mr. Justice Martineau in Figurado v. Canada(Solicitor General), [2005] F.C.J. No. 458, that the appropriate standard of review for the decision of a PRRA officer is reasonableness simpliciter when the decision is considered "globally and as a whole". This jurisprudence was followed by Madam Justice Layden-Stevenson in Nadarajah v. Canada(Solicitor General), [2005] F.C.J. No. 895 at paragraph 13. For the reasons given by my colleagues, I accept this to be an accurate statement of the applicable standard of review.
[7] When applying the standard of review of reasonableness simpliciter, a reviewing Court is to inquire into whether the decision is supported by reasons that are, in turn, supported by a proper evidentiary basis. An unreasonable decision is one that, in the main, is not supported by reasons that can stand up to a somewhat probing examination. (See: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 56). The reviewing court must be satisfied that the conclusions drawn from the evidence are logically valid. (See: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 63). A decision will be unreasonable "only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived". A decision may satisfy the standard of review if supported by a tenable explanation, even if the explanation is not one that the reviewing court finds compelling. See: Law Society of New Brunswickv. Ryan, [2003] 1 S.C.R. 247 at paragraph 55.
APPLICATION OF THE STANDARD OF REVIEW TO THE DECISION
[8] In light of the evidence before the officer, her reasons are problematic in a number of respects.
[9] First, as a matter of law, extortion may amount to persecution (see, for example, Packiam v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 779 (T.D.) and Vygthilingham v. Canada(Minister of Citizenship and Immigration), [2004] F.C.J. No. 970 (T.D.)). Here, while the officer states that "the evidence does not suggest the current level of extortion by the LTTE could amount to persecution", it is not clear what evidence the officer relied upon or why that extortion, in the officer's, view did not amount to persecution. This is a material omission in view of the evidence before the officer to the effect that elderly Tamils (particularly ones with relatives overseas) have been extorted, kidnapped and held until a ransom is paid and are subject to death threats from the LTTE.
[10] Second, the officer relied upon the existence of the Sri Lankan Monitoring Mission ("SLMM") which was said, by the officer, to be available to investigate and address complaints of abuse or extortion. However, counsel were unable to point to evidence in the record to support the view that the SLMM would provide effective assistance. There was, however, evidence before the officer that, in the past, assurances given to the SLMM by the LTTE were not honoured and that few people are prepared to complain to the SLMM.
[11] Third, to the extent that the officer relied upon an unspecified report provided by Human Rights Watch, such report was neither provided by Mrs. Kandiah in her PRRA submissions, nor listed by the officer in her decision where the officer referenced the sources she consulted. It is therefore impossible to assess whether the referenced Human Rights Watch report provided an evidentiary basis for the officer's conclusion.
[12] Finally, as to the whole of the officer's reasons, the officer placed great reliance upon the peace agreement, without mentioning the evidence before her that supported Mrs. Kandiah's concerns, and without explaining why the officer preferred the evidence which contradicted Mrs. Kandiah's concerns.
[13] As a result of these deficiencies, I conclude that the officer's reasons do not withstand a somewhat probing examination. The application for judicial review is, therefore, allowed.
[14] Neither counsel posed a question for certification, and I agree that no serious question of general importance arises on this record.
ORDER
[15] THIS COURT ORERS THAT:
1. The application for judicial review is allowed, and the decision of the Pre-Removal Risk Assessment officer dated March 23, 2004 is hereby set aside.
2. The matter is remitted for re-determination by another officer.
"Eleanor R. Dawson"
______________________________
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4516-04
STYLE OF CAUSE: PONNAMMAH KANDIAH V. THE SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 20, 2005
AND ORDER
APPEARANCES:
KUMAR SRISKANDA FOR THE APPLICANT
LORNE McCLENAGHAN FOR THE RESPONDENT
SOLICITORS OF RECORD:
BARRISTER & SOLICITOR FOR THE APPLICANT
SCARBOROUGH, ONTARIO
JOHN H. SIMS, Q.C.