Date: 20100127
Docket: IMM-3722-09
Citation: 2010 FC 92
Ottawa, Ontario, January 27,
2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Applicant
and
UDAYAKUMARAN BARANIROOBASINGAM
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1]
Although
the Minister has standing to seek judicial review of decisions of the
Immigration and Refugee Board of Canada, he usually does not do so except in
cases where the Board disagrees with his position that the individual was
covered by section F of Article 1 of United Nations Convention Relating to
the Status of Refugees, or was inadmissible. Mr. Baraniroobasingam is no
longer one who is suspected of war crimes, or crimes against humanity. He is a
middle-aged Tamil from the north of Sri Lanka who was granted refugee
status. The Minister submits that in this judicial review that decision should
be set aside. I agree.
[2]
While
one may be both a liar and a refugee (Canada (Public
Safety and Emergency Preparedness) v. Gunasingam, 2008 FC 181, 73 Imm.
L.R. (3d) 151), it is difficult to pin down an applicant’s subjective fear of
persecution if one has no confidence in what actually happened to him. In this
case, on the latest version of events, Mr. Baraniroobasingam left Sri Lanka in 2001. He
claims that he is at risk of persecution by the Tamil Tigers (LTTE) because he
refused to join their ranks and by the Sri Lankan Government because he is
suspected of having collaborated with the LTTE. Counsel for the Minister
intervened at the hearing before the Refugee Protection Division (RPD) on the
grounds that there was a serious possibility that paragraphs (a) and (c) of sections
F of Article 1 of the Refugee Convention applied in that he may have
participated in crimes of war, crimes against humanity or acts contrary to the
purposes and principles of the United Nations. However, the Minister’s counsel withdrew
from the case before the hearing was completed because of
Mr. Baraniroobasingam’s lack of credibility.
[3]
The
RPD of the Immigration and Refugee Board of Canada was not impressed with his
credibility either. The decision maker stated:
[7] In the course of the
claimant’s quest to obtain asylum in France or in Canada, he gave four different
versions; one to the French authorities that was judged not credible, a
different version at the point of entry in Canada, another one in his first
narrative and a final one where he admitted that more than half of the first
PIF’s version was false.
[8] Questioned about changing his
allegations, the claimant was a very poor witness. His testimony was often very
confusing. He was contradicting himself, adding facts that he omitted in his
PIF and changing many times the facts of his narrative. Questioned about when
he started being targeted by the LTEE, he said successively 1995, 1996 and
1999. It was impossible to understand.
[9] Hence, I conclude to the lack
of credibility of most of his allegations. I certainly d[o] not believe the
claimant was involved with the LTTE, which is on Canada’s list of terrorist organisations.
[4]
Nevertheless,
Mr. Baraniroobasingam was determined to be a Convention refugee as he had
established a serious possibility of persecution as a member of a particular
social group, Tamil males from the north of Sri Lanka.
[5]
The
decision was made following the defeat of the LTTE and in a context where there
is undoubtedly grave concern with respect to human rights abuses in Sri Lanka. The United
Nations High Commissioner for Refugees (UNHCR) reported objective evidence of
frequent and persistent human rights violations against Tamils from the north
and opined that there is a reasonable possibility a Tamil asylum seeker from
the north would experience serious harm if returned to Sri Lanka.
[6]
Regardless,
there must be some evidence of both a subjective and objective fear. The
circumstances in which Mr. Baraniroobasingam left Sri Lanka were not
analyzed. This Court has held on many occasions that country conditions alone
are not enough. The situation is not such that the Minister has put a
moratorium on returns of Tamils, and so there must be an individual analysis.
In addition to Gunasingham, above, reference may be had to Alexibich
v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 53; Singh v. Canada (Minister
of Citizenship and Immigration), 2008 FC 471; Jarada v. Canada (Minister of
Citizenship and Immigration), 2005 FC 409; Kaba v. Canada (Minister of
Citizenship and Immigration), 2006 FC 259, 55 Imm. L.R. (3d) 189; Subramanian
v. Canada (Minister of Citizenship and Immigration), 2005 FC 684; and Tharmalingam
v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 727.
[7]
Counsel
for Mr. Baraniroobasingam submitted that there had been an individual analysis
in that it was noted that he would be returning from Canada, known to be
a hot-bed of fundraising for the LTTE, and that he had been suspected of being
a LTTE sympathizer. Furthermore, the RPD member accepted as credible that Mr.
Baraniroobasingam’s brother had been recently killed. I cannot accept this last
contention. A statement of an alleged fact does not imply credibility.
[8]
Although
one does not have to allow oneself to be killed in order to prove one’s point,
I cannot accept that the reasons were sufficiently individualized. It is not
enough to simply accord refugee status simply on the basis of country
conditions. Even applicants from countries on whom the Minister has placed a
moratorium of return, such as Somalia, are not automatically
granted Convention refugee status.
[9]
Mr.
Baraniroobasingam shall have until Thursday, February 4, 2010 to pose a serious
question of general importance which could serve as the basis of an appeal. The
Minister shall have until Tuesday, February 9, 2010 to respond.
“Sean Harrington”
Ottawa,
Ontario
January
27, 2009
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