Docket: IMM-4203-11
Citation: 2012 FC 241
Ottawa, Ontario, February 22,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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SELVARATNAM VEERASINGAM
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated May 20, 2011. The
Board determined that the Applicant, Selvaratnam Veerasingam, was not a
Convention refugee or person in need of protection under sections 96 and 97 of
the Immigration and Refugee Protection Act, SC 2001, c 27.
[2]
For
the reasons set out below, this application is dismissed.
I. Facts
[3]
The
Applicant is a Tamil citizen of Sri Lanka. He brought a refugee
claim in Canada based on a
fear of the Sri Lankan army and Tamil militant groups. He alleged having been
detained on many occasions between 1980 and 2009.
[4]
More
specifically, he claimed that Sri Lankan soldiers detained him for one and a
half months in October 2008 until he was released as a result of a friend
paying a bribe. He also alleged that he was told to leave the country as the
soldiers reported that he had escaped.
[5]
He
left Sri
Lanka
in April 2009 and traveled through Malaysia, Africa and Europe (notably Switzerland) before
arriving in Canada in May of
the same year. He was 59 years old at the time of his refugee hearing.
II. Decision
Under Review
[6]
The
Board found that the Applicant was not a Convention refugee due in part to a
lack of credible testimony and failure to provide proof corroborating the
alleged incidents.
[7]
Commenting
on the credibility of the Applicant’s testimony, the decision states:
The Tribunal found the
claimant’s testimony throughout the hearing to be protracted and evasive. It
was extremely difficult to extract information. He was asked but never made it
clear how, when and/or how many times exactly he was arrested or detained, over
the thirty year time frame. Nor did he credibly convey that he was in fear for
his life, nor why it was that he allegedly feared all of those years, yet only
chose to leave Sri
Lanka at the age
of 59.
The claimant would frequently answer
questions that were not what was being asked. The Tribunal checked at the
outset and the claimant confirmed that he fully understood the interpreter. During
the hearing the Tribunal reconfirmed with the claimant and the interpreter to
ensure that there were no communication issues.
[8]
The
Board found that the Applicant had failed to credibly demonstrate that anyone
from a militant group was after him or that he had suffered injuries. Surprise
documents produced in the middle of the hearing were found to be of
questionable probative value.
[9]
The
Applicant was also faulted for the delay in leaving Sri Lanka and making a
refugee claim. It was noted that despite claims he was “in fear for his life
for many years and alleged detention, he indicated that following payment of a
bribe to secure his release in December 2008, he was told to simply leave the
country” but had provided “no explanation as to why.”
[10]
Given
his lack of credibility and change in circumstances in Sri Lanka, the Board
did not believe he was persecuted. It also concluded that no one was looking
for him. He had not established that it was not more likely than not that he
was at risk if returned to his country of origin.
III. Issues
[11]
The
issue raised by the Applicant is whether the Board committed a reviewable error
in assessing his claim.
IV. Standard
of Review
[12]
The
Board’s findings of fact and credibility are to be reviewed on a standard of
reasonableness (see Aguirre v Canada (Minister of
Citizenship and Immigration), 2008 FC 571, [2008] FCJ no 732 at para
14). This is consistent with Dunsmuir v New Brunswick, 2008 SCC 9,
[2009] 1 S.C.R. 190 at para 53 and Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12,
[2009] 1 SCR 339 at para 45.
[13]
Applying
the reasonableness standard as prescribed by Dunsmuir, above at para 47,
this Court must be “concerned mostly with the existence of justification,
transparency and intelligibility with in the decision-making process” as well
as “whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.”
[14]
By
contrast, questions of law demand the correctness standard (Dunsmuir,
above at para 50).
V. Analysis
[15]
While
the Applicant acknowledges that the Board’s findings are reasonable for the
most part, he submits that an error resulted in failing to discuss why he would
not be at risk as a returning, failed refugee claimant. He points to evidence
submitted and referred to at paragraph 19 of the Board’s decision of “articles
submitted by the claimant’s counsel regarding the treatment of Tamils in Sri Lanka,
specifically returned asylum seekers.” According to the Applicant, failed
refugee claimants who are targeted would be a member of a particular social
group and this should have been addressed by the Board.
[16]
The
Respondent contends that the Board addresses this matter when its reasons are
read in context. Given the reference to related material submitted by counsel,
it cannot be said that the Board ignored this evidence. In that same
paragraph, the Board also concluded that “[f]urther still, the claimant failed
to credibly, convey to the Tribunal, that subsequent to his release, he was, is
or would be sought after by anyone for any reason in Sri Lanka.” This can
be seen as a finding on the issue and the Applicant is simply challenging the
weighing of the evidence.
[17]
The
Applicant refers the Court to the decision of Ghirmatsion v Canada (Minister
of Citizenship and Immigration), 2011 FC 519, [2011] FCJ no 650 at para 104
where it was acknowledged that “in general, a negative credibility finding (if
reasonable and made with regard to the evidence) will mean that the decision
maker does not have to look further into the claim” but “if the claimant
puts forward facts that raise an additional ground of persecution, that part of
the claim still needs to be assessed, unless the visa officer clearly finds
that part of the claim to also lack credibility.”
[18]
The
error arose in Ghirmatsion, above because the Board never considered the
additional ground of persecution. However, I am not convinced that this also
occurred in the present case.
[19]
As
the Respondent highlights, the Board stated in its reasons that it considered
the Applicant’s evidence regarding the treatment of Tamils who were returned
asylum seekers in Sri Lanka and based on this evidence the Board found
that the Applicant would not be “sought after by anyone for any reason”
[20]
In
his reply, the Applicant appears to characterize the issue as one of adequacy
of reasons on the risk associated with him returning as a failed refugee
claimant. He relies on the decision of Vancouver
International Airport Authority v Public
Service Alliance of Canada, 2010 FCA 158, [2010]
FCJ no 809 to suggest that the Board did not explain the basis for its
decision.
[21]
Referring
to the Supreme Court’s recent elaboration on the requirement of reasons in Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] SCJ no 62 at para 18, the respondent notes the quoted
passage that “[r]easons are not to be reviewed in a vacuum – the result is to
be looked at in the context of the evidence, the parties’ submissions and the
process.” Considering that the determinative issue was credibility and a
failure to establish a personal risk of harm, it was not unreasonable to
consider the evidence of risk to failed asylum seekers and determine that the Applicant
would not be sought after by anyone for any reason in Sri Lanka.
[22]
I
am prepared to agree with the Respondent’s position. In light of serious
credibility concerns, the Board’s decision accords with the principles of
justification, transparency and intelligibility. Although the evidence on this
issue was dealt with briefly, it was considered.
[23]
The
Board reasonably weighed that evidence and reached a broader conclusion that
the Applicant had failed to establish risks he would face if returned to Sri Lanka.
[24]
As
a secondary argument, the Applicant suggests that the Board erred in referring
to the burden of proof under subsection 97(1)(b). He takes issue with the
wording at paragraph 26 of the decision that the Board “does not believe that
it is more likely than not that the claimant would be personally targeted for
any reason were he to return to Sri Lanka” when the burden is to show a risk of
mistreatment on a balance of probabilities.
[25]
With
respect, there is no merit to this distinction. The Federal Court of Appeal
clarified in Li v Canada (Minister of Citizenship and Immigration),
2005 FCA 1, [2005] FCJ no 1 at paras 29 that the term “balance of
probabilities” was equivalent to “more likely than not”, but with two distinct steps
involved as to the burden of proof and legal test. In assessing risk specifically
under subsection 97(1)(b), the question, as discussed at para 38 of Li, is
whether “it is more likely than not that the individual would be subjected,
personally, to a risk to his life or to a risk of cruel and unusual treatment
or punishment if the person was returned to his country of nationality.”
[26]
In
my view, the wording referred to by the Applicant and the Board’s overall
assessment of risk is consistent with that approach. Even the Applicant
recognizes that the correct test is referred to at other points in the
decision.
[27]
Indeed,
the Board made clear that one of the determinative issues was the “personal
risk of harm for the claimant were he to return to Sri Lanka today.” There
would need to be persuasive evidence of that risk “on a balance of
probabilities” or to show that it was “more likely than not.” The Board uses
this terminology throughout its decision.
[28]
The
Applicant’s reliance on Kedelashvili v Canada (Minister of
Citizenship and Immigration), 2010 FC 465, [2010] FCJ no 547 at paras
8-9 is misplaced. In that instance, Justice Judith Snider’s concern was
not in relation to the burden of proof on a “balance of probabilities” per se
but that the Board only considered whether the applicant would not face any
torture or cruel and unusual treatment. She found the Board erred by failing
to instead refer to the “risk of” torture or cruel and unusual treatment as
consistent with its mandate under section 97.
[29]
Similar
concerns do not arise in the present case. As demonstrated, the Board was
mindful of its role in considering the evidence of “risk” to the Applicant on a
balance of probabilities. I must therefore agree with the Respondent that
there was no error in referring to the Applicant’s burden of proof under
subsection 97(1)(b) throughout the decision and making reference to the test
that risk be “more likely than not.”
VI. Conclusion
[30]
The
Applicant has failed to demonstrate that the Board erred in its assessment of
his claim of the risk facing a failed refugee claimant and the burden of proof
under subsection 97(1)(b) to justify the intervention of this Court. As a
consequence, I must dismiss his application for judicial review
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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