Date: 20041117
Docket: IMM-7942-03
Citation: 2004 FC 1604
Ottawa, Ontario, this 17th day of November, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
NANTHAGOBAL THAVACHELVAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Applicant, Nanthagobal Thavachelvam, is a 32-year old, Tamil man from Jaffna, Sri Lanka who entered Canada on September 17, 1995. On the basis of a fear of persecution because of membership in a specific social group (the Tamil), he made a claim for Convention refugee status which was denied. In May 2001, he made an application for permanent residence based on humanitarian and compassionate ("H & C") grounds which was denied by decision dated June 30, 2003. On December 6, 2002, the Applicant applied for a pre-removal risk assessment ("PRRA") based on the risk that he would face upon return to Sri Lanka. By decision dated March 18, 2003, the PRRA Officer concluded that the Applicant would not be at risk if returned to Sri Lanka. The Applicant seeks judicial review of the PRRA Officer's decision.
Issues
[2] The Applicant raises two issues:
1. Did the PRRA Officer breach natural justice by failing to take into account certain submissions made by the Applicant's counsel in the context of the consideration of his H & C application?
2. Was the decision of the PRRA Officer made without regard to the evidence that demonstrated that a young Tamil male was at risk if returned to Sri Lanka?
Preliminary Issue
[3] The Respondent requests that the style of cause be amended in this case by dropping the Minister of Citizenship and Immigration as a party. The subject of this application has been transferred to the Canada Border Services Agency ("CBSA") over which the Solicitor General of Canada presides. The proper Respondent is the Solicitor General of Canada and this request will be granted.
Analysis
Issue #1: Did the PRRA Officer breach natural justice by failing to take into account certain submissions made by the Applicant's counsel in the context of the consideration of his H & C application?
[4] The Applicant argues that certain materials forwarded to Citizenship and Immigration Canada on April 7, 2003, should have been considered by the PRRA Officer or, in the alternative, that the Applicant should have had an opportunity to comment on the PRRA before it was finalized. In this case, I am not satisfied that either of these positions has merit.
[5] Some confusion in this case arises due to the related nature of the H & C determination and the PRAA and the process used by CIC to assess these two applications. In his application on H & C grounds, the Applicant included allegations that he would be at risk. This allegation meant that the following steps occurred:
1. The H & C Officer was required to obtain a risk analysis from an officer "who has specialized knowledge in matters related to risk in certain countries". In this case, and in keeping with the procedures generally adopted by CIC, the H & C Officer sent the risk analysis portion of the application to the same PRRA Officer who carried out the PRRA that is in issue before me.
2. After it was prepared and under cover letter dated March 18, 2003, the risk opinion report was sent to the Applicant who was given an opportunity to review the report and to comment on errors or omissions. This risk opinion was entitled "Pre-removal Risk Assessment" and is identical to the PRRA at issue before me.
3. The Applicant provided comments by letter dated April 7, 2003.
4. On May 12, 2003, the PRRA Officer responded to the April 7, 2003, submissions by concluding that she was still of the opinion that the Applicant would not be at risk if removed to Sri Lanka.
5. In a decision dated June 30, 2003, the H & C Officer denied the application on H & C grounds, taking into account the risk opinion and the other factors of the Applicant's situation.
[1] Meanwhile, the PRRA process proceeded to completion on March 18, 2003. The Respondent argues that the PRRA Officer was functus as of March 18, 2003 when the PRRA decision was made.
[2] On the particular facts of this case, it seems to fly in the face of common sense to allow the Applicant an opportunity to comment on exactly the same document completed by the same officer in the context of the H & C determination and refuse him the same opportunity for the PRRA determination. Nevertheless, the two processes are, by the statute, different. The requirement to provide the risk opinion to the Applicant in the H & C process arises because, in that process, the risk opinion is simply another piece of evidence that must be disclosed to the Applicant prior to the H & C Officer making her decision (Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407 (F.C.A.) (QL)). In contrast, in the PRRA process, the PRRA is prepared by and is the decision of the PRRA Officer. There is no need to disclose a "draft" of the PRRA to the Applicant prior to making a decision.
[3] Further, in this case, I am satisfied that this separation of the two processes did not result in prejudice to the Applicant. The Applicant could have applied for judicial review of the H & C decision; he did not. The Applicant has an opportunity-exercised in this case-to apply for judicial review of the PRRA Officer's decision. His rights are protected notwithstanding this odd and confusing process. I am not persuaded that there was a reviewable error.
Issue #2: Was the decision of the PRRA Officer made without regard to the evidence that demonstrated that a young Tamil male was at risk if returned to Sri Lanka?
[4] The Applicant argues that the PRRA Officer erred by failing to take into account the documentary evidence that shows that Tamil males are subject to risk. During the hearing, the Applicant referred me to a number of such examples contained within independently-produced, reliable documents such as the U.S. Department of State Report on Human Rights Practices. Since the Officer made no explicit reference to this evidence that supports the Applicant's position, the Applicant argues that I should infer that this evidence was not considered by the Officer.
[5] I can only overturn the Officer's decision if I find that it was patently unreasonable. Given this high standard of review, the question to be addressed is whether the decision can be supported by any of the evidence before her.
[6] The Officer carefully considered the potential personalized risk to the Applicant. In her decision, she addresses each allegation of risk made by the Applicant with reference to the Applicant's submissions and to the applicable documentary evidence. She also analyzes the general country conditions, taking into account all of the documents referred to by the Applicant. A review of the decision establishes that the Officer did not ignore the "contrary" evidence; there is specific reference to ongoing violence. Further, having reviewed the record, I am satisfied that the evidence contains many references to the improvement in the situation in Sri Lanka.
[7] Certainly, she could have made more detailed reference to those portions of the evidence that support the Applicant's submissions. However, the Applicant does not point to any document or affidavit evidence that was clearly excluded from her analysis as was the case in Toro v. Canada (Minister of Employment and Immigration), [1981] 1 F.C. 652 (F.C.A.) (QL). In that case, there was clear evidence that none of the documents provided to the tribunal by the claimant were before it. In the case before me, the documents were all put before the Officer and duly weighed. That weighing is the job of the Officer and not of this Court.
[8] It has been held by this Court that, although a decision maker in the immigration process is not required to refer to each piece of evidence that was before her, when there is evidence which directly contradicts their findings, that contrary evidence must at least be acknowledged (Zheng v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 140, para. 13 (F.C.T.D.) (QL)). Read in its totality, the decision demonstrates that the PRRA Officer was aware of and considered the contradictory evidence; a failure to list line by line the various statements buried in the documentary evidence that would support the position of the Applicant is not an error.
[9] Finally, I note that the Applicant will be returned to Colombo and not to the north or east of Sri Lanka. The Applicant, together with his parents and siblings (other than one sister), settled in Colombo in 1991. Many of the references pointed out to me by the Applicant are to the risks in the north and east of Sri Lanka. Those references are irrelevant to the Applicant's situation and certainly did not require specific mention by the PRRA Officer.
[10] In summary on this point, I am satisfied that the Officer did not ignore any evidence and that her decision is supported by the evidence.
Conclusion
[11] For these reasons, this application for judicial review will be dismissed. Neither party requested that I certify a question. None will be certified.
ORDER
THIS COURT ORDERS THAT:
1. The style of cause is amended by replacing the Minister of Citizenship and Immigration with the Solicitor General of Canada as Respondent;
2. The application for judicial review is dismissed; and,
3. No question of general importance is certified.
"Judith A. Snider"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7942-03
STYLE OF CAUSE: NANTHAGOBAL THAVACHELVAM v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 10, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
APPEARANCES:
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FOR APPLICANT
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FOR RESPONDENT |
SOLICITORS OF RECORD:
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Barrister & Solicitor Toronto, Ontario |
FOR APPLICANT |
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Deputy Attorney General of Canada Toronto, Ontario |
FOR RESPONDENT |