BETWEEN:
Thavamany VELAUTHAPILLAI
and
AND IMMIGRATION
REASONS FOR JUDGMENT
Pinard J.
[1] This is an application for judicial review of the decision of a Pre-Removal Risk Assessment (PRRA) Officer (the “Officer”), dated May 1, 2006, wherein the Officer determined that the applicants would not be subject to risk of persecution, danger of torture, risk to life or risk of cruel and unusual treatment or punishment if returned to their country of nationality, Sri Lanka.
[2] The applicants are husband and wife, aged 67 and 61 respectively, and are both Tamils from Sri Lanka. Velauthapillai Vidnusingam, the husband, is the principal applicant and his wife’s claim is based on his.
[3] The applicants identified the following risks: risk of arrest, torture and detention by the army and the Liberation Tigers of Tamil Eelam (LTTE), as well as risk of extortion by the LTTE. The Officer found that the documents submitted by the applicants only outlined the general conditions in Sri Lanka and did not address the risks the applicants would personally face if they returned to Sri Lanka.
[4] The Officer referred to a number of the conclusions of the Refugee Division of the Immigration and Refugee Board (the Board), specifically that the applicant had been harassed over the last several years but that the harassment did not amount to persecution. The Board had also concluded that the alleged detention and beating of 2000 had not occurred and that the applicants, being relatively older people, did not fit the profile of people in the North of Sri Lanka who face the most difficulties from the LTTE and the army.
[5] The Officer reviewed the documentary evidence and highlighted the following findings:
i. Despite recent incidents between the LTTE and the army, the ceasefire of 2002 is still holding and there was no indication that the country would return to war.
ii. Although serious problems still exist, particularly in the north and the east, the government generally respected human rights and various avenues of recourse were available for victims.
iii. A high number of Tamils continue to be arrested in Colombo but those most at risk are young Tamils who have recently travelled from the north and east. In the north-east, Tamils continue to be detained and to go missing but those most at risk are young Tamil men accused or suspected of belonging to, collaborating with aiding or sympathizing with the LTTE.
iv. Tamils continue to be murdered and abducted throughout the country but the victims seem to be outspoken members of the Tamil community, such as LTTE opponents.
v. Sri Lankans returning from abroad are generally questioned but there is no evidence of arbitrary detentions or torture.
[6] Based on this evidence, the Officer concluded that the country conditions had not significantly deteriorated since the applicants’ refugee hearing.
[7] The Officer also determined that there was no objective documentary evidence to support the applicant’s contention that he would be targeted by the LTTE or the army and concluded it was unlikely the LTTE would still be interested in the applicants after six years.
[8] The Officer also held that state protection was available.
* * * * * * * *
[9] At the hearing before me, counsel for the applicants raised the following issues:
- Did the Officer breach procedural fairness by failing to give the applicants the opportunity to make submissions on those documents relied on by the Officer which were only available after the applicants had submitted their PPRA application?
- Did the Officer apply the wrong test for persecution?
- Did the Officer err in determining that state protection was available?
Analysis
A. Opportunity to respond to new evidence
[10] The applicants submit that the Officer breached procedural fairness by considering new documentary evidence without providing them the opportunity to address its content. They submit that fairness requires disclosure of such evidence where it is novel and significant and where the evidence may affect the decision. The respondent suggested that the new evidence was not significant because it did not change the Officer’s decision and refers to the Officer’s statement in the decision that “country conditions have not significantly deteriorated since the applicant was before the RPD.”
[11] The Federal Court of Appeal in Mancia v. Canada (M.C.I.), [1998] 3 F.C. 461, held that:
[26] . . . The fact that a document becomes available after the filing of an applicant's submissions by no means signifies that it contains new information or that such information is relevant information that will affect the decision. 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.
[12] While the Officer was required to consider whether the country conditions had changed since the Board’s decision, his determination on this issue is not relevant to the issue raised by the applicants. The applicants are concerned with whether the new documents indicate a change in country conditions since the time when the applicants submitted their PRRA application. Therefore, the relevant comparison is between the country conditions in the pre-submissions documents and those in the post-submissions documents.
[13] In my opinion, the post-submission documents that the Officer considered did evidence changes in the country conditions in that they indicate an escalation in killings of Tamils and violence in general; however, I am not persuaded that the changes were of such significance that they affected the decision of the Officer. The new evidence indicated an upsurge in the violence; however, the Officer found that the applicants did not fit the profile of the people who were at risk in Sri Lanka under the current conditions. In these circumstances, the Officer did not breach procedural fairness by failing to disclose the new information about country conditions to the applicants.
B. Test for persecution
[14] The applicants submit that the question of whether they face persecution should have been whether there are serious grounds that they would become known to the LTTE rather than whether it is likely that they would become known to the LTTE, the test the applicants argue that the Officer applied.
[15] The applicants are correct in stating that the test for persecution is not balance of probabilities. A well-founded fear of persecution is anything more than a mere possibility (Adjei v. Canada (M.E.I.), [1989] 2 F.C. 680 (C.A.)). However, the Officer’s determination that the LTTE was unlikely to still be interested in the applicant is only one part of the Officer’s analysis and was not his conclusion on whether the applicants met the test for persecution. Given that the Officer stated the correct test for section 96 in his conclusion when he stated that “based on the totality of the evidence before me, I do not find that there is more than a mere possibility that the applicant[s] would be subjected to persecution as described in Section 96 of the Immigration and Refugee Protection Act”, I find that he applied the correct test.
C. State protection
[16] The applicants submit that the Officer made a perverse finding when he concluded that if there had been a state breakdown it would have been reported by human rights groups but failed to refer to any human rights documents.
[17] They also submit that the Officer erred in stating that the National Police Commission (NPC) could protect them from the LTTE when the documentary evidence cited by the Officer stated that the NPC deals only with police.
[18] The Officer found that state protection in Sri Lanka is not perfect but that there are avenues of recourse available to the applicants should they need protection. The Officer noted that the applicants would be able to receive state protection from state authorities, the National Police Commission, and the Human Rights Commission.
[19] In so far as the general appreciation of the facts made by the Officer is concerned, I have not been convinced, upon reviewing the evidence, that the latter based his decision on an erroneous finding of fact that he made in a perverse or capricious manner or without regard for the material before him (paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7). More specifically, a review of the documentary evidence that was before the Officer indicates that there are a number of places to lodge complaints about human rights violations. In the circumstances, I cannot find that the Officer’s conclusion with respect to state protection is patently unreasonable given the evidence that Sri Lanka is making some efforts to investigate human rights abuses.
Conclusion
[20] For all the above reasons, the application for judicial review is dismissed.
Ottawa, Ontario
May 1, 2007
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2985-06
STYLE OF CAUSE: VELAUTHAPILLAI VIDNUSINGAM, Thavamany VELAUTHAPILLAI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 21, 2007
REASONS FOR JUDGMENT: Pinard J.
DATED: May 1, 2007
APPEARANCES:
Micheal Crane FOR THE APPLICANTS
David Joseph FOR THE RESPONDENT
SOLICITORS OF RECORD:
Micheal Crane FOR THE APPLICANTS
Barrister & Solicitor
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada