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Docket: IMM-4292-04
Citation: 2005 FC 713
Ottawa, Ontario, May 20, 2005
Present: THE HONOURABLE MADAM JUSTICE
LAYDEN-STEVENSON
BETWEEN:
MURALITHARAN NADARAJAH
Applicant
and
THE SOLICITOR GENERAL FOR CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] On April 5, 2004, the Minister's delegate (the ministerial delegate) determined
that "there is insufficient evidence based on a balance of probabilities to believe
that Mr. Nadarajah would face risk of torture or risk to life or cruel or unusual
punishment or treatment as outlined in section 97 of [the Immigration and Refugee
Protection Act, S.C. 2001, c. 27] IRPA if returned to Sri Lanka". This is an
application for judicial review of that decision.
BACKGROUND
[2] Mr. Nadarajah - also known as "Murali" - was born in Inuvil, Jaffna, Sri Lanka
and is a citizen of that country. In 1984, he claims to have been arrested, detained
and tortured by the Sri Lankan army for the purpose of obtaining knowledge
about the Tamil Tigers (LTTE). He spent approximately two years in various
prisons and detention camps during which time he alleges that he was subjected
to beatings and torture. When he became ill, he was transferred to a hospital and
was subsequently convicted of failing to provide information. He spent a total of 31
months in prison.
[3] He returned to Jaffna, but was forced to move three times and eventually fled
to India. He then made his way to Switzerland where he lived for a number of
years. In previous proceedings regarding Mr. Nadarajah, it has been determined
that, while in Switzerland, he orchestrated fundraising and propaganda activities in
support of the LTTE. He left Switzerland after he had been charged, tried and
acquitted of being a member of a criminal organization. He moved to France and
in 1998, using a false identity, made his way to Canada and claimed refugee
status.
[4] The Convention Refugee Determination Division (CRDD), as it was then
constituted, rejected his claim. It found that Mr. Nadarajah personally and
knowingly participated in crimes committed by the LTTE by raising funds and
spreading propaganda. Consequently, he was excluded pursuant to sections F(a)
and (c) of Article 1 of the Refugee Convention for participating in crimes against
humanity and acts contrary to the purposes and principles of the United Nations.
[5] Subsequently, the Adjudication Division rendered a decision in an inquiry
initiated under subsection 27(6) of the now repealed Immigration Act, R.S.C.
1985, c. I-2 regarding paragraphs 27(2)(g) and 27(2)(a) relating to the
inadmissibility provision of sub-paragraph 19(1)(f)(iii)(b) of that Act. The
Adjudicator concluded that Mr. Nadarajah is a person belonging to an
inadmissible class because of his membership in an organization engaged in
terrorism. There was no evidence that he satisfied the Minister that his admission
would not be detrimental to the national interest.
[6] Mr. Nadarajah submitted an application for a pre-removal risk assessment
(PRRA) on November 27, 2002. He claimed to be at risk at the behest of both the
Sri Lankan authorities and the LTTE. The former, allegedly, would seek
information relating to his high-level activities with the LTTE. The latter, he urged,
would kill him for being a traitor. He submitted documents relative to the instability
of the political situation in Sri Lanka.
[7] The PRRA officer, who completed the initial assessment, concluded that Mr.
Nadarajah had failed to establish that there are substantial grounds to believe
that he would be subject to a danger of torture, or to a risk to his life, or to a risk
of cruel or unusual treatment. The assessment was disclosed to Mr. Nadarajah
and he was invited to comment regarding errors or omissions. He availed himself
of that opportunity. The PRRA officer's initial assessment and Mr. Nadarajah's
commentary were forwarded to the ministerial delegate.
THE DECISION
[8] The ministerial delegate concluded that Mr. Nadarajah would not be at risk if
returned to Sri Lanka. Based on the documentary evidence, and despite isolated
violations of the cease fire between the Sri Lankan authorities and the LTTE, the
delegate concluded that the situation in Sri Lanka is much improved.
[9] In response to Mr. Nadarajah's allegation that he would be killed by the
assassin known as "Shukla", the ministerial delegate stated that if that were so Mr.
Nadarajah would have been killed while in Switzerland or during his time in
Canada. He had not sought protection in this respect from Canadian police
officials during his many years in Canada.
[10] The ministerial delegate found Mr. Nadarajah's allegation of fear of
persecution at the hands of the LTTE to be a "spurious" one since he is a
high-ranking member of that organization. The controls exercised over the Tamil
population in Columbo are not so onerous as to be indicative of disproportionate
cruel or unusual punishment. Moreover, the delegate opined, because of Mr.
Nadarajah's high profile as a LTTE, it is unlikely that the Sri Lankan police or
military would jeopardize the peace process by treating him adversely.
[11] The ministerial delegate relied heavily on a decision from the European Court
of Human Rights dated February 17, 2004 (Thampibillai v. The Netherlands,
European Court of Human Rights No. 61350/00) wherein the country conditions in
Sri Lanka were extensively reviewed. He concluded that "the improving conditions
in Sri Lanka may not demonstrate that the entire country is at peace; however,
these changes are indicative of an impending durable solution". The violations by
both sides "do not demonstrate that the peace process has irrevocably broken
down". In the result, Mr. Nadarajah had not demonstrated on a balance of
probabilities that he would be at risk. It was therefore not necessary to deal with
acts committed or danger posed to the security of Canada.
ISSUES
[12] Much of the argument in the written submissions was devoted to the issue of
the appropriate standard of proof under section 97 of IRPA. Since the filing of the
memoranda, the Federal Court of Appeal decision in Li v. Canada (Minister of
Citizenship and Immigration) (2005), 329 N.R. 346 (F.C.A.), leave to appeal
dismissed, [2005] S.C.C.A. No. 119, has been released and has resolved this
question. Mr. Nadarajah's counsel abandoned this argument at the hearing. The
remaining arguments centred on three discrete allegations of error, specifically,
that the ministerial delegate erred:
(a) in concluding that Mr. Nadarajah would not be at risk at the hands of the LTTE;
(b) in breaching procedural fairness by relying on the decision of the European
Court of Human Rights without permitting Mr. Nadarajah the opportunity to make
submissions with respect to the content of the decision;
(c) in failing to distinguish between the risk pertaining to high-profile LTTE
members (as opposed to ordinary members) after concluding that Mr. Nadarajah
is a high-profile member of that organization.
THE STANDARD OF REVIEW
[13] Mr. Justice Martineau recently canvassed the question of the applicable
standard of review for PRRA determinations in Figurado v. Canada (Solicitor
General) 2005 FC 347. He concluded, at paragraph 51, that where the decision is
considered "globally and as a whole", the standard of review is reasonableness.
However, where a particular finding of fact is made by the PRRA officer, the Court
"should not substitute its own decision with that of the PRRA officer unless it is
demonstrated by the applicant that such finding was made in a perverse or
capricious manner or without regard to the material before the PRRA officer". Mr.
Justice Mosley, in Kim v. Canada (Minister of Citizenship and Immigration) 2005
FC 437 concurred with Justice Martineau's analysis and I intend to do likewise.
Accordingly, the ministerial delegate's decision, except for factual findings, will be
subject to a somewhat probing examination.
ANALYSIS
[14] In my view, the decision, for the reasons that follow, does not withstand the
scrutiny of a somewhat probing examination. The defect is fatal and it relates to
the ministerial delegate's failure to consider the specific circumstances of Mr.
Nadarajah's personal situation and his particular risk as a high-profile member of
the LTTE coupled with the fact that this information had been communicated to
the Sri Lankan authorities as a result of media coverage. Because the decision is
fatally flawed in this respect, I will address the other alleged errors only briefly.
RISK AT THE HANDS OF THE LTTE
[15] The foundation for the ministerial delegate's determination that Mr. Nadarajah
need not fear the LTTE is the finding that he is a high-ranking, high-profile LTTE
member who came to Canada to organize the LTTE in Canada. Mr. Nadarajah
asserts that there are two possible explanations for his presence here. There is,
on the one hand, the explanation accepted by the ministerial delegate. On the
other hand, there is the explanation that he has fallen out of favour with the LTTE
because he was accused of misappropriating funds and of having an
inappropriate affair. There is objective evidence, he says, to support the latter
theory. It was, according to Mr. Nadarajah, inappropriate for the ministerial
delegate to simply choose one reason over the other, without providing an
explanation for so doing, particularly when the CRDD afforded little weight to the
evidence that supported the explanation accepted by the ministerial delegate.
[16] It strikes me that Mr. Nadarajah bears a heavy burden with respect to this
argument. The ministerial delegate made a factual determination in choosing one
explanation over the other. The delegate was not bound by the weight that the
CRDD accorded to the same evidence. Indeed, the Adjudicator attached
significant weight to that evidence. The PRRA officer's assessment, which
included a comprehensive analysis of the evidence regarding Mr. Nadarajah's
LTTE-related activities in Toronto, was before the ministerial delegate. There was
not only ample evidence before the delegate to support this conclusion, there was
substantial, material evidence in this respect. Mr. Nadarajah's submission that the
"basis for the finding is unknown" is disingenuous.
BREACH OF PROCEDURAL FAIRNESS
[17] Mr. Nadarajah claims that the ministerial delegate breached the duty of
fairness by relying on the Thampibillai decision, supra, without giving him an
opportunity to respond. He notes that the decision post dates his submissions by
a year. Because the case was heavily relied on by the delegate to support the
conclusion that there had been significant changes, for the better, in the country
conditions in Sri Lanka, Mr. Nadarajah contends that the duty of fairness requires
that the document be disclosed to him before, not after, a decision is made.
[18] The standard of review discussed earlier does not apply here because,
generally, a breach of procedural fairness will vitiate a decision. Resolution of this
issue is governed by the principles articulated in Mancia v. Canada (Minister of
Citizenship and Immigration), [1998] 3 F.C. 461 (C.A.). Mr. Justice Décary, at
paragraph 51, makes it clear that the mere 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 where the decision maker "relies on a significant
post-submission document that evidences changes in the general country
conditions that may affect the decision that the document must be communicated
to that applicant".
[19] There is no doubt that the ministerial delegate relied on the Thampibillai
decision from the European Court of Human Rights. Nearly one third of the
"rationale" portion of the delegate's decision is devoted to a discussion of this
authority. The question, though, is whether the content of the decision refers to
changes in the general country conditions and whether the decision was
"available". In my view, the jurisprudence is a public document and is readily
available on line. Although it is dated February 14, 2004 (some nine months after
Mr. Nadarajah's submissions of May 10, 2003) the country conditions documents
summarized within the decision do not post date Mr. Nadarajah's submissions, with
one exception. There is one reference, at paragraph 44 of the decision, to a
document that post dates Mr. Nadarajah's submissions by 18 days. The content of
that report does not materially or otherwise affect the other referenced country
conditions reports.
[20] In sum, the country conditions referred to in Thampibillai, supra, were the
same country conditions existing at the time of Mr. Nadarajah's submissions. The
one exception does not constitute such a "novel and significant" change, as
contemplated in Mancia, supra, that it required disclosure and a further
opportunity to Mr. Nadarajah to make submissions on it. There is no breach of
procedural fairness.
FAILURE TO ASSESS RISK REGARDING HIGH-PROFILE MEMBERS OF THE
LTTE
[21] Mr. Nadarajah contends that the ministerial delegate erred by concluding, on
the basis of his status as a high-ranking member of the LTTE, that he does not
face increased risk. He points to documents exhibited to his affidavit revealing that
various articles have been published about him in the Sri Lankan press. In one, a
Sri Lankan security official states that Mr. Nadarajah would be interrogated and
detained upon return to Sri Lanka.
[22] I agree with the respondent that articles that were not before the ministerial
delegate are not properly before me on judicial review and they will not be
considered. That said, there were articles in Mr. Nadarajah's submissions
establishing that he was known to the Sri Lankan authorities, articles relating to
the Sri Lankan army's treatment of high-profile LTTE members and articles
discussing the instability of the peace process.
[23] In Thuraisingam v. Canada (Minister of Citizenship and Immigration) (2004),
251 F.T.R. 282 (F.C.), Madam Justice MacTavish discussed the circumstances of
an applicant who was known to the Sri Lankan authorities because of his alleged
gang activities in Canada. The RCMP had connected senior members of the gang
in question with the LTTE in Sri Lanka. Justice MacTavish concluded that this
raised "a prima facie risk to Mr. Thuraisingam from the Sri Lankan autorities". At
paragraph 50, she stated:
In assessing the risk to Mr. Thuraisingam if he were returned to Sri Lanka, the
Minister's Delegate examined the general situation facing returning Tamil
refugees,
finding that the situation was much improved, and that work was being done to
smooth the way for returning deportees. No consideration was given to the specific
circumstances of Mr. Thuraisingam's own situation, or to the particular risk that he
might face from Sri Lankan authorities.
The matter of the risk assessment was remitted to the ministerial delegate for a
new risk assessment.
[24] In Thanabalasingham v. Canada (Minister of Citizenship and Immigration)
2005 FC 172, Mr. Justice Lemieux determined that there existed a fatal flaw in the
risk analysis of the Minister's delegate. He noted that his conclusion was identical
to that reached by Justice MacTavish. He identified the defect in the risk analysis
as one that "relates to the fact that the Minister's delegate did not consider the
specific circumstances of the applicant's own situation and to his particular risk
arising from the fact that he was alleged to be the leader of a Tamil gang in
Toronto, which gang is said to support the LTTE and that this has been
communicated to the Sri Lankan authorities as a result of media coverage". The
risk assessment was set aside.
[25] The only distinction between the noted authorities and the situation before
me is that, undoubtedly, Mr. Nadarajah's profile as a member of the LTTE was
found to be significantly higher than that of the applicants referred to by Justices
MacTavish and Lemieux. Insofar as the ministerial delegate's flawed decision is
concerned, I consider this distinction to be an aggravating, not a mitigating, factor.
The error in this matter is further compounded by the ministerial delegate's heavy
reliance on the European Court of Human Rights decision. In that case, the Court
concluded that it had not been established that the applicant "is known to the
authorities as a (suspected) LTTE supporter and that they would therefore have
an interest in him" (emphasis is mine).
[26] The ministerial delegate paid lip service to the "many differences in the
circumstances between that case and Mr. Nadarajah's case", but did not deal with
them. This is particularly troublesome when regard is had to paragraph 48 of the
decision where the Court refers to the "Operational Guidance Note on Sri Lanka,
issued on 23 July 2003 by the Immigration and Nationality Directorate (Asylum and
Appeals Policy Directorate) of the United Kingdom Home Office" and refers to the
following excerpt from that report:
The authorities in Sri Lanka will no longer be concerned with those individuals
with past low-level support for the LTTE (e.g. digging trenches, providing food/
shelter to LTTE fighters), those with no police/criminal record or those who may
have been arrested in the past and subsequently released. Those individuals who
may be of continuing interest to the authorities would be... "those wanted in a
relatively serious fashion". This could mean high-profile members of the LTTE
who are still active and influential, and wanted by the authorities.
[27] It is indisputable, in my view, that the profile that the ministerial delegate
assigned to Mr. Nadarajah lands squarely within the latter portion of the quoted
excerpt. The delegate gave it no consideration. Hence, this is not a situation
where the decision maker preferred some documentary evidence over other
documentary evidence. If I am wrong in this respect, then the problem lies with the
absence of any explanation in this regard.
[28] In short, the ministerial delegate's analysis of risk was not informed by Mr.
Nadarajah's personal situation or circumstances. The delegate made a finding
that Mr. Nadarajah was a high-ranking, high-profile member of the LTTE and, with
the exception of the finding referred to in the next paragraph, left the finding
dangling and unconnected to the country conditions reports. For these reasons,
the decision does not withstand a probing examination and it can not be
sustained. My conclusion would be the same even if I applied, as the respondent
suggested, a standard of review of patent unreasonableness.
[29] There is one further finding that merits mention. In the "rationale" portion of
the reasons, the ministerial delegate states: "Mr. Nadarajah is a high profile
member of the LTTE; it would be difficult to give credence to adverse treatment by
the Sri Lankan police or military which would place this peace process in
jeopardy". There is nothing in the reasons to indicate any basis for this conclusion
nor have I been able to locate any evidentiary basis for it in the record. Absent
disclosure regarding the basis of or the rationale underlying this conclusion, I find
that it is perverse or capricious.
[30] The application for judicial review will be allowed and the matter will be
remitted for reassessment of the risk to Mr. Nadarajah should he be returned to
Sri Lanka. Counsel did not suggest a question for certification and I decline to
certify a question.
ORDER
THIS COURT ORDERS THAT the application for judicial review is allowed and the
matter is remitted for reassessment.
"Carolyn A. Layden-Stevenson"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4292-04
STYLE OF CAUSE: MURALITHARAN NADARAJAH
Applicant
and
THE SOLICITOR GENERAL FOR CANADA
Respondent
DATE OF HEARING: May 12, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: Layden-Stevenson J.
DATED: May 20, 2005
APPEARANCES BY:
Krassina Kostadinov FOR THE APPLICANT
John Loncar FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates
Barristers & Solicitors
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT