‘overzealous approach’ in Tamil refugee case

A federal judge has chided an immigration officer for imposing a virtually “impossible standard” in assessing the risk and danger faced by a failed Tamil refugee if he was to be deported to Sri Lanka.

In concluding Suresh Nagarasa would be safe to return to Sri Lanka, the officer, identified in court only as “B. Au,” said the 27-year-man provided “insufficient evidence” that his life would be at risk despite support letters from a member of Parliament and justice of the peace, both in Sri Lanka.

The immigration officer’s “decision is replete with findings of ‘insufficient evidence,’” wrote Justice Shirzad S. Ahmed in his recent ruling to reject the officer’s decision and send the case back for redetermination.

“The officer’s overzealous approach to scrutinizing the letters for hearsay, dates, and other allegedly missing details comes dangerously close to imposing an impossible standard that would effectively require letters from persons who were physically present during the alleged mistreatment.”

According to the court, Nagarasa fled to Canada for asylum after he claimed he was arrested, detained and tortured by Sri Lankan authorities on two occasions, in 2009 and 2012, and accused of being a supporter of the Liberation Tigers of Tamil Eelam.

He fled to Canada for asylum in 2013 via India and the United States, but his claim was denied the same year after a refugee judge concluded he lacked credibility and failed to establish he was subject to torture by Sri Lankan authorities.

Fearing for his safety, the court said, Nagarasa did not appear for his initial deportation and went “underground” for almost three years.

In an interview with the Star, Nagarasa said he moved from safe house to safe house with the help of a large network of extended family and spent most of the time holed up indoors in the Toronto area.

Last April, tired of hiding, he said he consumed an industrial cleaning agent to try to kill himself after meeting with an immigration lawyer and being advised to surrender to immigration authorities.

“I didn’t see any hope. I was depressed. I was scared to go back to Sri Lanka,” said Nagarasa, who was studying journalism at Jaffna University when his family got him out of the country with help of a smuggler. “The (civil) war in Sri Lanka is over but the problems are not.”

After his release from the Humber River Hospital, Nagarasa said, he was arrested by York Regional Police and detained, first at Maplehurst Correctional Centre and then at Central East Correctional Centre in Lindsay. The Canada Border Services Agency was notified and a preremoval risk assessment ensued.

After learning of his new deportation date in August, Nagarasa said he made another suicide attempt just four days prior to the removal, slitting his wrist with a razor, while at the Lindsay jail. He was later put in a medical centre while the result of the risk assessment was under appeal.

In rejecting Nagarasa’s risk assessment, Au, the immigration officer, used the term “insufficient evidence” 14 times, including four in one paragraph disputing the claimant’s perceived link to the Tamil Tigers and risk of being a target of persecution by Sri Lankan authorities.

Au also said there’s insufficient evidence to demonstrate that either Sri Lankan MP Sivagnanam Shritharan or justice of the peace Nishanthini Niranjan “has personally witnessed or has firsthand knowledge” of Nagarasa’s claims. In their respective letters, they corroborated Nagarasa’s claims of arrest, detention and torture, warning he would face severe threats from the army and police.

The officer also dismissed the letter from the claimant’s mother to support her son’s claim because of her “vested interest” to have him remain in Canada.

While Au accepted Nagarasa suffered from depression, he dismissed the risk he might commit suicide in Sri Lanka because suicide risk is not described in the Canadian refugee law and there is no agent of persecution. The risk of self-harm or suicide, the officer said, was speculative and “controllable” by the man’s own actions.

“I am deeply troubled by the officer’s statement … Self-harm and suicide is not ‘controllable’ by a person who contemplates taking his or her own life,” wrote Justice Ahmed in his ruling.

“Only the most perverse characterization would call attempted suicide in these circumstances a choice, or, in the officer’s words, ‘controllable by the applicant’s own actions.’ Particularly as a senior immigration officer, B. Au either knew or ought to have known better.”

Ian Sonshine, Nagarasa’s lawyer, said only between three and five per cent of preremoval risk assessments are positive and immigration officials often use “insufficient evidence” as a reason to dismiss the applicants’ claims.

“We are happy we have somebody on the bench who is sympathetic and shows understanding of the issues and willingness to put themselves in the shoes of our clients,” said Sonshine. (The Star)

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