Date: 20120223
Docket: IMM-4995-11
Citation: 2012 FC 251
Ottawa, Ontario, February 23,
2012
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
|
|
MAYOORAN SELVALINGAM
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision made by the Refugee
Protection Division of the Immigration and Refugee Board (the Board), dated July
4, 2011, wherein it was determined that the applicant was not a Convention
refugee pursuant to section 96 of the Immigration and Refugee Protection Act,
SC 2001, c 27 (the Act) nor a person in need of protection pursuant to section
97 of the Act. For the following reasons, the applicant’s application for
judicial review is dismissed.
I. Background
[2]
The
applicant is a Tamil male from the North of Sri Lanka. He was 24
years old when he sought refugee protection in Canada in February
2010.
[3]
The
applicant’s claim is based on a fear of the LTTE, the Sri Lankan military and a
para-military organization called the EPDP. He alleged that he faced
persecution at the hands of Tamil militants and at the hands of the Singhalese
military. In his Personal Information Form (PIF), the applicant recounted the
following events.
[4]
In
2001, the applicant was forced, along with all the students at his school, to
listen to speeches given by LTTE members. On their way back home after school,
all the students were intercepted by soldiers who checked their IDs and ordered
them to stand under the sun for one or two hours before letting them go.
[5]
In
June 2006, the applicant’s father was abducted by the Tamil militant group EPDP
and released only upon the payment of a bribe. In August of the same year, the
applicant’s brother was arrested by the military and was beaten up while in
detention.
[6]
The
applicant’s situation worsened in 2007. He recounted having been stopped at
least 10 times by the military on his way to and from work. On a few occasions,
he was slapped.
[7]
In
April 2007, he was arrested by the military following a bomb explosion that
occurred in front of his house. He was accused of “knowing the person (tigers)
who set the bomb.” While he denied having any information, he was beaten up and,
at one point, pushed against the wall; the last incident resulted in broken
teeth.
[8]
He
and his brother decided to flee Sri Lanka but his father could
not afford to send them both away. The father chose to send the applicant’s
brother away because he was the eldest. His brother left in June 2007, came to Canada and was
accepted as a Refugee.
[9]
In
December 2007, the applicant, along with a friend, was arrested again by the
military and was detained for an hour. The military checked their IDs and when
they found that his friend was from Jaffna, they were both “assaulted
with the butt of the gun.”
[10]
At
the hearing before the Board, the applicant stated that he had also been
arrested by the military in September 2007. He stated that he was intercepted
on his way back home after work, beaten up and detained for one hour.
[11]
The
applicant fled Sri Lanka in March 2008 and went to the United
States.
He was detained upon arrival in the United States and remained in
detention for a period of one year and seven months. While in the United
States,
he filed a Refugee claim which was rejected. However, he appealed the decision,
won the appeal and his file was sent back for re-determination. He was released
from detention before the redetermination of his case but he left for Canada before the hearing
date.
II. The
decision under review
[12]
The Board
found that there was not a serious possibility that the applicant would be
persecuted for a section 96 Convention ground if he were to return to Sri Lanka. Further, the Board held that
the applicant was not a person in need of protection under paragraph 97(1)(a)
or (b) of the Act.
[13]
The
Board made several negative credibility findings. It found that the applicant lacked
credibility at the refugee hearing because he gave a testimony that was vague
and lacked clarity; he provided only limited information and failed to provide
any document to corroborate his allegations. However, for the purpose of this
decision, it is not necessary to further expand on the negative credibility findings
of the Board.
[14]
The
Board conducted a separate section 96 and section 97 analysis.
[15]
With
respect to the section 96 analysis, the Board found that listening to a one
time speech from the LTTE in school in 2001 did not constitute persecution by
the LTTE. Further, the Board held that the applicant’s experiences at the hands
of the military did not amount to persecution considering the volatile
situation in Sri
Lanka
at the time. The Board stated that the applicant’s experiences with the
military may have amounted to discrimination or harassment but did not rise to
the level of persecution. The Board also found that the applicant’s behaviour
was not consistent with a subjective fear for his life and that he was forum
shopping.
[16]
In
addition, the Board found that the applicant had not established that he was a
person of interest for the military in light of what was going on in Sri Lanka at the time.
Based on the documentary evidence about the actual situation in Sri Lanka, the Board
acknowledged that Tamils can still suffer injustice and harassment, sometimes
with the knowledge of government, but concluded that the applicant failed to
establish that he would be subject to a serious possibility of being persecuted
in the future.
[17]
The
Board also assessed the applicant’s claim under section 97 of the Act. First, the
Board found that the evidence did not suggest that he would face any danger of
torture within the meaning of article 1 of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment. Second, the Board
found that the applicant had not established that it was more likely than not
that he would face a risk to his life or a risk of cruel and unusual treatment
or punishment should he return to Sri Lanka. The Board noted the important
change of circumstances in the political environment of Sri Lanka. While the Board
acknowledged that the situation is not completely resolved, it found that,
given the applicant’s profile and his personal circumstances, he had not
established that he would be personally targeted for any reason or that he
would be of particular interest to the military or to any other group should he
return to Sri
Lanka
today.
[18]
Finally,
the Board found, in the alternative, that an internal flight alternative (IFA)
was available to the applicant. The Board noted that the applicant’s parents
and sisters continue to reside in Sri Lanka and have not had any
problems. The Board concluded that the applicant did not refute the possibility
that he could find a place to live and employment in Colombo or Kandy. The Board indicated
that country conditions in Sri Lanka had recently improved
and registration requirements had been eased in a number of locations, making
it easier for the applicant to relocate.
III. Issues
[19]
The
applicant raised several issues but they all boil down to whether the Board’s
findings and conclusions are reasonable.
IV. Standard of review
[20]
Neither
the applicant nor the respondent made any arguments about the applicable standard
of review. However, it is well established in jurisprudence that the applicable
standard of review is reasonableness where the issues concern questions of fact
and credibility (Dunsmuir v New Brunswick, 2008 SCC 9 at para 53, [2008] 1
SCR 190 [Dunsmuir], Tellez Picon v Canada (Minister of
Citizenship and Immigration), 2010 FC 129 at para 6 (available on CanLII); Osman
v Canada (Minister of Citizenship and Immigration), 2008 FC 921 at para 28
(available on CanLII)) or IFAs (Vargas v Canada (Minister of Citizenship and
Immigration), 2008 FC 367 at para 20 (available on CanLII); Medina v
Canada (Minister of Citizenship and Immigration), 2008 FC 1148 at paras
13-14 (available on CanLII)).
V.
Analysis
[21]
The
applicant attacked the Board’s credibility findings on several fronts, but I do
not find it necessary to expand on the applicant’s arguments since this application
would have failed even if the Board had not made any negative credibility
findings.
[22]
The
applicant also challenged the Board’s analysis under section 96 of the Act. He argued
that he did not need to show that he had been personally targeted or persecuted
in the past or that he would himself be persecuted in the future to trigger
protection. Rather, it was sufficient to show that his fear resulted from
persecution committed or likely to be committed against members of a group to
which he belongs. The applicant relied on Salibian c Canada (Minister of
Employment and Immigration, [1990] 3 FC 250 at 258, 73 DLR (4th) 551, to
support this argument.
[23]
At
the hearing before the Board, counsel for the applicant argued that being a
young Tamil male from the north was sufficient to trigger Refugee protection. He
based his assertion on the allegation that the government still considers
Tamils as a potential danger because they could help the LTTE regain life and
become a threat again. However, at the hearing before the Court, the actual counsel
for the applicant took a different approach. She acknowledged that all Sri
Lankans did not face a similar risk and that being a young Tamil from the North
was not sufficient to trigger Refugee protection. However, she argued that the
relevant “particular group” was the group composed of young Tamils suspected of
having links with the LTTE. She argued that the documentary country conditions
evidence establishes that Tamils suspected of having links to the LTTE are
still at risk of persecution and that the applicant fits this profile.
[24]
In
my view, there is a fatal flaw in the applicant’s argument because I consider
that the evidence could not reasonably support the proposition that upon return
to Sri Lanka, the applicant would be considered as a person suspected of having
or of having had any links with the LTTE. The applicant’s sole encounter with
the LTTE in 2001 and his arrests and detention in 2001 and 2007 have to be
examined within the context of the political situation in Sri Lanka at the time.
Moreover, the risk that must be examined is prospective and, therefore, it must
also be analyzed in light of the changes in the situation in Sri Lanka. This is
exactly what the Board did and, in light of the evidence, it was entirely
reasonable for it to conclude that the applicant had not established that he
was neither of special interest to the LTTE or the military before he left nor that
he would be if he was to return to Sri Lanka. Furthermore,
considering the applicant’s allegation that he had personally been subjected to
persecution, it was not unreasonable for the Board to examine that allegation
and its conclusion that the incidents encountered by the applicant did not
amount to persecution is reasonable.
[25]
Further,
it was also reasonable for the Board to conclude that the applicant had not
established that he would face a risk of torture upon his return to Sri Lanka. It was also
reasonable for the Board to conclude that it was unlikely that the applicant would
face a personalized risk of danger to his life, or risk of cruel and unusual
treatment or punishment given that he had not established, in light of the
actual circumstances in Sri Lanka, that he would be targeted or be of any particular
interest to the government.
[26]
Moreover,
nothing in the evidence supports a conclusion that the applicant would be at
any risk from the LTTE or the EPDP.
[27]
Therefore,
the Board’s reasoning and conclusions are defensible in respect of the law and
of the facts (Dunsmuir, above, at para 47), and the Court’s intervention
is not warranted. Considering this finding, there is not need to go further and
examine the Board’s conclusions with respect to the existence of an IFA.
[28]
The
parties did not propose any question for certification and no such question
arose in this case.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is dismissed. No
question is certified.
“Marie-Josée
Bédard”
Email this Content