INTHUSAN RASAKUMAR Applicant v. THE MINISTER OF, 2015 FC 343

Date: 20150318 Docket: IMM-449-14 Citation: 2015 FC 343 Toronto, Ontario, March 18, 2015 PRESENT: The Honourable Mr.

Justice Hughes BETWEEN:INTHUSAN RASAKUMARApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] This is a judicial review of a decision of an Officer of Citizenship and Immigration dated January 2, 2014 in which theApplicant’s application for an exemption from visa requirements for permanent residence in Canada on humanitarian and compassionategrounds was refused. [2] The Applicant is an adult Tamil male from Sri Lanka residing in the northern part of that country. He left Sri Lanka, cameto the United States where his claim for asylum was granted preliminary acceptance.

Nonetheless, he came to Canada and claimedrefugee protection based on a fear of persecution in Sri Lanka. That claim was rejected by a decision of a member of the RefugeeProtection Division dated July 20, 2011. An application for leave to apply for judicial review was dismissed by this Court. [3] The Applicant then applied for an exemption on humanitarian and compassionate grounds. That application was supportedby letters from his mother, father, sister and wife, all of who resided in Sri Lanka.

I agree with the Officer that the substance of theevidence set out in those letters is not materially different from the evidence considered by the Refugee Protection Division, namely fearof harassment by the Sri Lankan authorities because the Applicant is a young adult Tamil male from the northern part of that country. By the time that the humanitarian and compassionate application was filed, the Applicant had spent about eighteen months in Canada.

The evidence as to assimilation was directed to his attendance at a religious temple in Canada, and a brief letter from his sister residing inCanada to the effect that the Applicant spent time with her family. [4] Applicant’s Counsel argues that the Officer’s discretion was fettered by reliance upon the decision of the Refugee ProtectionDivision, and that the Officer did not conduct an independent investigation as to hardship were the Applicant to be returned to Sri Lanka. [5] An application on humanitarian and compassionate grounds is an application for an exemption from the usual visarequirements.

As stated by Justice Evans (as he then was) in Gautam v Canada (Minister of Citizenship and Immigration) (1999), (FC), 167 F.T.R. 124 at paragraph 9, the applicant bears a heavy burden to satisfy the Court that a rejection of a claim forexemption was unlawful. As stated by Justice L'Heureux-Dubé of the Supreme Court of Canada in Baker v Canada (Minister ofCitizenship and Immigration), (SCC), [1999] 2 SCR 817 at paragraph 62, considerable deference must be afforded tothe Officer exercising such powers. [6] The parties are agreed that the standard of review is reasonableness.

In conducting such a review, the words of JusticeStratas of the Federal Court of Appeal in Kanthasamy v. Canada (Minister of Citizenship and Immigration), 2014 FCA 113 at paragraph99 must be kept in mind. In conducting a reasonableness review of factual findings, the Court shouldn’t re-weigh the evidence; under areasonableness review, the quest is limited to finding irrationality or arbitrariness of the sort that implicates our rule of law jurisdiction. [7] In the present case, I find that the Officer’s decision was reasonable.

The Officer did not fetter his or her discretion byreferring to the Refugee Board Decision.

The Officer expressly states “I am mindful that I am not bound by the Board’sfindings….Nevertheless, the findings of the Board are relevant to the assessment of hardship in a humanitarian and compassionateapplication where the applicant presents materially the same evidence in his application that was presented before the Board”. [8] I find that the Officer was correct in stating that the evidence was materially the same, namely that the state authorities wereseeking out the Applicant and might harm him. [9] The Officer stated that, in addition to the Board’s decision, consideration was given to the Applicant’s evidence and that theOfficer conducted independent research into country conditions.

I am satisfied that the Officer’s findings were not fettered by anyreference made to the Refugee Board’s Decision. [10] The application will be dismissed. No party requested a certified question. JUDGMENT FOR THE REASONS PROVIDED:

THIS COURT ORDERS AND ADJUDICATES that : 1. The application is dismissed; 2. No question is certified; 3. No Order as to costs. “Roger T. Hughes” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-449-14 STYLE OF CAUSE: INTHUSAN RASAKUMAR v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: March 17, 2015 JUDGMENT AND reasons: HUGHES J. DATED: March 18, 2015 APPEARANCES : Robert I. Blanshay For The Applicant David Cranton For The Respondent SOLICITORS OF RECORD : Robert I. Blanshay Barrister and Solicitor Toronto, Ontario For The Applicant William F. Pentney Deputy Attorney General of Canada Ottawa, Ontario For The Respondent