Date: 20000824
Docket: IMM-4019-99
BETWEEN:
BALAKRISHNAN RAMACHANDRAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of a decision of a Post-Claim Determination Officer (the "officer") wherein the officer determined that the applicant is not a member of the post-determination refugee claimants in Canada class (the "PDRCC") as defined in subsection 2(1) of the Immigration Regulations, 19781. The decision under review is dated the 29th of July, 1999.
[2] In its application in respect of this matter, "member of the post-determination refugee claimants in Canada class" is defined to mean an immigrant in Canada who the Convention Refugee Determination Division of the Immigration and Refugee Board has determined not to be a Convention refugee and who, if removed to a country to which the immigrant could be removed, in this case Sri Lanka, would be subjected to an objectively identifiable risk, which risk would apply in every part of that country and would not be faced generally by other individuals in or from that country, to the immigrant's life, of extreme sanctions against the immigrant or of inhumane treatment of the immigrant.
[3] The applicant is a young Tamil male and a citizen of Sri Lanka. At the date of the decision under review, he was 27 years of age. He is distinguishable from many Tamils in that he was born neither in the north or east of Sri Lanka, or in Colombo, but rather in the central regions of Sri Lanka, sometimes described as the "hill country". He alleges a risk to his life, of extreme sanctions or of inhumane treatment if he is required to return to Sri Lanka by reasons of his age and ethnicity and by reason of allegations of past ill-treatment prior to his leaving Sri Lanka and his arrival in Canada on the 21st of February, 1999. At the time of his arrival here, he claimed Convention refugee status. That claim was denied by the Convention Refugee Determination Division on the 24th of February, 1999, essentially on the basis of a finding of want of credibility.
[4] The officer wrote in "Notes au dossier" under the headings "Évaluation des risques de retour" and "Risque(s) identifié(s) par le(s) requérant(s)":
| M. Ramachandran allègue des risques de retour advenant un retour dans son pays d'origine le Sri Lanka. Il dit craindre pour sa vie, d'être torturé ou de subir des sanctions excessives de la part des militants du LTTE et des forces de sécurité sri-lankaises en raison de sa nationalité tamoule et de son appartenance à un groupe social minoritaire. |
[5] Under the heading "Analyse", the officer wrote:
| Dans la décision du tribunal de la Section du statut (SSR), le panel a conclu que le demandeur n'était pas crédible et que son témoignage était évasif, inconsistant et rempli de contradictions. |
| Nonobstant la décision de la SSR, je me dois d'évaluer si M. Ramachandran court un risque réglementaire qui lui est personnel tel : Menace pour sa vie, imposition de sanctions excessives et traitements inhumains advenant son retour au Sri-Lanka. |
[6] Counsel for the applicant noted that the officer acknowledged her obligation to evaluate the risk that the applicant would face if returned to Sri Lanka but that the officer did not note her obligation to evaluate the factual allegations made by the applicant. That being said, the officer did note:
| J'ai pris connaissance de toutes les notes au dossier du demandeur à savoir : Sa déclaration au point d'entrée, sa FRP, la décision de la SSR datée du 2 mars 1999 ainsi que ses représentations datées du 1er avril 1999. À la lumière des informations recueillies et après avoir consulté la documentation récente sur le pays mise à ma disposition, le demandeur ne m'a pas convaincue du bien-fondé des craintes formulées. Je n'ai pas trouvé dans la preuve soumise, des raisons me permettant de croire que sa vie serait menacée, qu'il subirait des traitements inhumains ou des sanctions sévères de la part des forces de sécurité sri-lankaises ou de la part des militants du LTTE advenant un retour dans son pays. De plus, à l'instar de la SSR j'ai relevé de nombreuses contradictions dans ses déclarations. |
[7] Counsel for the applicant urged that the officer erred in a reviewable manner in three respects. First, she alleged that the officer erred in law in her assessment of the evidence by ignoring evidence and misrepresenting evidence; second, that the officer arrived at a decision that was not reasonably open to her, to the effect that the applicant faced no risk to his life, of extreme sanction against him or of inhumane treatment if he were returned to Sri Lanka because of the errors of law alleged; and third, that the officer breached the principles of fairness by not disclosing to the applicant publicly available documentary evidence not submitted by the applicant and not forming part of his immigration file without drawing the particular documentary evidence to the attention of the applicant and providing him an opportunity to respond to it.
[8] By contrast, counsel for the respondent urged that the officer made no reviewable error in arriving at the decision that she did.
[9] In Bagri v. Canada (Minister of Citizenship and Immigration)2, my colleague Mr. Justice Campbell wrote at paragraphs 9 and 10:
| In Maldonado v. Canada (MEI) ,...the Federal Court of Appeal held that when an applicant swears to the truth of certain allegations, a presumption is created that those allegations are true unless there is reason to doubt their truthfulness. The Court held that a Board acts arbitrarily in choosing to disbelieve an applicant's testimony where there exists no valid reason to doubt the truthfulness of it. Thus, while it is open to the CRDD as the trier of fact to evaluate the evidence and accord weight, any inconsistencies it finds must be supported by the evidence. |
| In Ahortor v. Canada (MEI), ...Mr. Justice Teitelbaum held that the CRDD erred in finding an applicant not credible because he was not able to provide documentary evidence corroborating his claims. Thus, while a failure to offer documentation may be a valid finding of fact, it cannot be related to the applicant's credibility, in the absence of evidence to contradict the allegations. [citations omitted] |
[10] Counsel for the applicant urged that the officer erred in impugning the credibility of the applicant by reason of the fact that he failed to adduce medical or photographic evidence that would have supported his claims to physical injuries resulting from abuse while he was held in detention in Colombo. The officer wrote:
| En guise de preuve de torture, monsieur déclare avoir été blessé à un bras avec un couteau tranchant cependant, il n'en fournit pas la preuve, pas de photos, pas de certificat médical. Il n'a subi aucun traitement médical après sa présumée détention. Devant la SSR, il a déclaré avoir soigné sa blessure avec un onguent que son père a obtenu pour lui et il n'a pas eu besoin de se présenter à l'hôpital. À la lumière des informations recueillies ses allégations de torture m'apparaissent douteuses. |
Further, counsel urged that the officer ignored substantial documentation that was before her that demonstrated that persons such as the applicant, resident in Colombo, even though they essentially remained in hiding in their residences, were nonetheless subject to roundups extending to roundups at residences, with resultant arrests, detention and torture.
[11] Finally on the first issue, counsel for the applicant urged that the officer erred in law in failing to take into account the allegations of the applicant that he had no national identity card and the documentary evidence that was before the officer indicating that a national identity card, particularly for a young tamil male, was essential to the avoidance of arbitrary arrest, detention and abuse in Colombo, and that for a person such as the applicant, the process of obtaining a national identity card was "fraught with difficulty".
[12] Counsel for the applicant urged that, in light of the foregoing alleged errors of law, the decision of the officer, particularly in light of the forward-looking nature of the test that she was required to apply, simply was not reasonably open to her or, put another way, the decision was perverse or capricious.
[13] Finally, counsel for the applicant urged that the officer breached the duty of fairness owed to the applicant through fettering her discretion by adopting as her own, without analysis, conclusions of fact arrived at by the Convention Refugee Determination Division, particularly as those conclusions related to the credibility of the applicant and through relying on "obscure" publicly available documentary information in support of her decision without first making that documentary evidence available to the applicant and providing him with an opportunity to respond to it. Counsel urged that such a finding on my part with regard to the documentary evidence would amount to a reasonable extension of the principles adopted by the Federal Court of Appeal in Haghighi v. Canada (Minister of Citizenship and Immigration)3.
[14] Despite the able argument of counsel for the applicant, I find no reviewable error on the part of the officer in reaching the decision that she did. Her "Notes au dossier" concerning the "Évaluation des risques de retour" are extensive and detailed. As previously indicated, the officer recognized her obligation to, herself, evaluate the risk that the applicant would face if required to return to Sri Lanka. While it would have been preferable that she go further and acknowledge that she was obliged to, herself, evaluate the evidence before her, albeit taking into account the evaluation of the same or similar evidence that was before the Convention Refugee Determination Division and, where she considered it appropriate, adopting as her own that evaluation with appropriate explanations, the failure to specifically acknowledge that obligation was not, of itself, a reviewable error. A thorough review of the "Notes au dossier" leads me to conclude that the officer in fact fulfilled that obligation. The fact that she chose to adopt many of the factual determinations of the CRDD is not, in my view, conclusive in and of itself that the officer fettered her discretion.
[15] I am satisfied that the officer did not offend the principles enunciated by my colleague Mr. Justice Campbell and quoted above from the decision in Bagri.
[16] While there was certainly ample documentary evidence before the officer to indicate that persons such as the applicant, that is to say young tamil males no matter where they might have been born in Sri Lanka, are at risk of arrest and detention in roundups conducted in Colombo, and of lesser but nonetheless significant risk of abuse in detention, given the concerns about the credibility of the applicant, and notwithstanding the forward-looking nature of the test to be applied by the officer, I am satisfied that her conclusion was reasonably open to her, once again notwithstanding that the applicant is not currently in possession of a national identity card.
[17] Finally, I am not prepared, on the facts of this matter, to extend the principles enunciated by the Federal Court of Appeal in Haghighi, supra, to recognize an obligation on an officer such as the officer whose decision is here under review to disclose to an applicant publicly available documentary information on which she or he proposes to rely and to extend to the applicant an opportunity to respond to that documentary information. I am not satisfied, once again on the facts of this matter, that the principles regarding the duty of fairness that were enunciated by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration)4 extend that far.
[18] In the result, this application for judicial review will be dismissed.
[19] Counsel for the applicant will have seven (7) days from the date of the issuance of these reasons to make representations on certification of a question, having first served them on counsel for the respondent. Counsel for the respondent will have seven (7) days thereafter within which to serve and file responding representations. Counsel for the applicant may, within three (3) working days of the service on her of the respondent's response, file any reply. Thereafter, an order will issue.
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J. F.C.C.
Ottawa, Ontario
August 24, 2000
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