THEEPAN KATHIRKAMANATHAN Applicant v. THE MINISTER OF, 2016 FC 761

Date: 20160711 Docket: IMM-2784-15 Citation: 2016 FC 761 St. John’s, Newfoundland and Labrador, July 11, 2016 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:THEEPAN KATHIRKAMANATHANApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent REASONS FOR JUDGMENT [1] These Reasons are issued pursuant to the Judgment issued on June 10, 2016. [2] Mr. Theepan Kathirkamanathan (the “Applicant”) seeks judicial review of the decision of a Pre-Removal Risk AssessmentOfficer (the “Officer”) dismissing his Pre-Removal Risk Assessment (the “PRRA”). The Officer determined that the Applicant was not aConvention Refugee or person in need of protection as defined in

section 96 or subsection 97(1) of the Immigration and RefugeeProtection Act, S.C. 2001, c. 27, as amended (the “Act”). [3] The Applicant is a citizen of Sri Lanka, of Tamil ethnicity.

He arrived in Canada on April 14, 2010 and sought refugeeprotection on May 10, 2010 on all five of the Convention grounds. [4] His claim for recognition as a Convention refugee was refused by the Immigration and Refugee Board, Refugee ProtectionDivision (the “RPD”) on March 17, 2011, on the grounds that he was not credible and did not fit the profile of a person attracting theinterest of the authorities. [5] The Applicant submitted his PRRA application in November 11, 2011 alleging a fear of persecution from the Sri Lankanarmy as a “young Tamil male” who would be perceived as a member of the Liberation Tigers of Tamil Eelam (the “LTTE”).

He alsoclaimed to be at risk because he was a failed refugee claimant. Finally, he alleged a risk of detention and extortion from the authorities atthe Colombo airport. [6] The Applicant’s PRRA application has been refused twice.

He succeeded upon judicial review of those decisions in causenumbers IMM-2304-12 and IMM-2443-13. [7] In support of his PRRA application, the Applicant filed new evidence, including a copy of a Detention Attestation dated May26, 2009 issued by the International Committee of the Red Cross; a letter dated November 28, 2012 from the Applicant’s father; 162news articles; and an affidavit from the Applicant sworn on December 12, 2012. [8] In her decision denying his PRRA application, the Officer checked the box indicating that the Applicant had not submittednew evidence. [9] The Officer said that the Detention Attestation was not accepted as new evidence since the document could have beenprovided to the RPD and the Applicant had not explained why he did not do so. [10] The Officer found that, while the Applicant’s parents may have been visited by army intelligence in 2012, there was noindication that any state authorities were still interested in the Applicant.

She found that the Applicant does not face a risk under sections96 or 97 of the Act. [11] The Officer reviewed the current country documentation and noted that Sri Lanka experiences a number of human rightsissues including extortion, disappearances and killings. She acknowledged that the documentary evidence shows the Sri Lankanauthorities continue to search for suspected member of the LTTE. However, the Officer found that extortion is not a risk that falls undersection 96 or

section 97 of the Act. [12] The Officer found that there was no evidence to indicate that the Applicant is known to the authorities or that he is suspectedof being a LTTE member. [13] Finally, the Officer concluded that she was not persuaded that the Applicant would face more than a mere possibility ofpersecution because of his ethnicity, or that he would face a risk to his life or a risk of cruel and usual treatment or punishment if returnedto Sri Lanka. [14] The first issue to be addressed is the standard of review.

Since a PRRA application involves questions of mixed fact and lawand the weighing of evidence, the applicable standard of review is reasonableness; see the decision in Raza v. Canada (Minister ofCitizenship & Immigration) (2006), 2006 FC 1385 , 58 Admin. L.R. (4th) 283 (F.C.) at para. 12, aff'd (2007), 2007 FCA 385, 370 N.R. 344 (F.C.A.) at para. 3. [15] The reasonableness standard requires that the decision be justifiable, transparent, intelligible and fall within a range ofpossible, acceptable outcomes; see the decision in Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190 at para. 47.

[16] The Applicant advanced several arguments in this application. However, in my opinion, it is not necessary for me to addressall the arguments since I am satisfied that the Officer made a reviewable error. The dispositive issue in this application is the burden ofproof applied by the Officer in assessing the risk alleged by the Applicant. [17] Under

section 96 of the Act, the claimant must establish a reasonable chance of persecution, which is less than the balance ofprobabilities; see the decision in Adjei v. Canada (Minister of Employment and Immigration), (FCA), [1989] 2 F.C.680. This burden has been described as more than a mere possibility of persecution; see the decision in Alam v. Canada (Minister ofCitizenship and Immigration) (2005), 2005 FC 4 , 41 Imm. L.R. (3d) 263. [18] In my opinion, the Officer’s decision does not meet the standard of reasonableness referred to above. It is unclear whether theOfficer applied the correct burden of proof to assess the Applicant’s risk pursuant to

section 96 of the Act. Any doubt in that regard willbe resolved in favour of the Applicant. [19] In the result, this application for judicial review is allowed and the matter is remitted to a different Officer for re-determination. There is no question for certification arising. “E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-2784-15 STYLE OF CAUSE: THEEPAN KATHIRKAMANATHAN V. THE MINISTER OF CITIZENSHIPAND IMMIGRATION PLACE OF HEARING: toronto, ontario DATE OF HEARING: december 16, 2015 reasons FOR JUDGMENT: HENEGHAN J.

DATED: july 11, 2016 APPEARANCES: Michael Crane For The Applicant Christopher Ezrin For The Respondent SOLICITORS OF RECORD: Michael Crane Barrister and Solicitor Toronto, Ontario For The Applicant William F. Pentney Deputy Attorney General of Canada Toronto, Ontario For The Respondent