Date: 20120612
Docket: IMM-6563-11
Citation: 2012 FC 706
Ottawa, Ontario, this 12th
day of June 2012
Present: The
Honourable Mr. Justice Pinard
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
Suresh
Chandrabose FERNANDO
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by the Minister of Citizenship and
Immigration (the “applicant”) of the decision of Negar Azmudeh, member of the Refugee
Protection Division of the Immigration and Refugee Board (the “Board”),
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the “Act”). The Board held that Suresh Chandrabose
Fernando (the “respondent”), a Tamil citizen of Sri Lanka, was a Convention
refugee and a person in need of protection pursuant to sections 96 and 97 of
the Act.
[2]
The
Board accepted the respondent’s identity, and also found him to be a credible
witness. The Board found that there were no material inconsistencies or contradictions
in the evidence that were not reasonably explained, and therefore the Board
believed what was alleged in support of his claim.
[3]
Having
accepted his credibility, the Board found that the respondent had been arrested
in Colombo, and was only released
because of a bribe. The Board did not accept the applicant’s submission that
the authorities did not consider the respondent an activist with Tamil Tigers
(“LTTE”) links. The Board found it more likely than not that, as a Tamil
returnee with an arrest record and perceived LTTE links, the respondent would
be detained upon his return to Sri Lanka, where he would face a reasonable possibility of
persecution and of cruel and unusual treatment or punishment.
[4]
The
Board rejected the evidence presented by the applicant that the Sri Lankan army
has guaranteed the security of a referred combatant. In light of the serious
human rights violations perpetrated by the Sri Lankan authorities, the Board
did not find such a guarantee credible. The Board found that state protection
is not available to the respondent, as the state is the agent of persecution.
[5]
The
Board further found that, since the Sri Lankan authorities are in effective
control of the territory, the respondent cannot reasonably avoid them should he
return. The Board found he would likely be arrested on arrival and persecuted,
and therefore he could not enter the country without detection and live
anywhere in Sri
Lanka
without a reasonable fear of persecution, thus eliminating the possibility of
any viable Internal Flight Alternative (“IFA”). The respondent’s claim for
refugee protection was therefore granted.
* * * * * * * *
[6]
The
only issue raised by the applicant in this application is whether the Board
erred in its analysis of whether there was a viable IFA for the respondent in Sri Lanka.
[7]
The
Board’s determination of whether a claimant has a viable IFA is a question of
mixed fact and law, and therefore is to be reviewed on a standard of
reasonableness (Agudelo v. Minister of Citizenship and Immigration, 2009
FC 465 at para 17). This determination is to be given significant deference and
must only be disturbed if the Board’s reasoning was flawed and the resulting
decision falls outside the “range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at para 47 [Dunsmuir]). Although there may be more than one
possible outcome, as long as the Board’s decision making process was justified,
transparent and intelligible, a reviewing court cannot substitute its own view
of a preferable outcome (Canada (Minister of Citizenship and Immigration) v.
Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 59).
* * * * * * * *
[8]
The
applicant argues that the Board failed to conduct a proper IFA test, instead
simply concluding that the Sri Lankan authorities would arrest the respondent
on arrival and subject him to persecution and cruel and unusual treatment or
punishment. The applicant submits that this conclusion overlooks the numerous
pieces of evidence confirming that the respondent left Sri Lanka using his own passport.
The respondent also traveled within Sri Lanka to Colombo with his father.
[9]
The
respondent argues that an IFA did not arise on the facts of this case, because
the Board found that the respondent would be arrested immediately upon his
arrival in Sri
Lanka, and
therefore he could not flee to another part of the country. The respondent
notes that an IFA is not viable if it is not accessible to the claimant (Rabbani
v. Canada (Minister of Citizenship and Immigration) (1997), 125 F.T.R. 141 at
paras 16-17). The respondent also notes that an IFA is inapplicable when the
state itself is the agent of persecution (Khan v. Canada (Minister of
Citizenship and Immigration) (2000), 6 Imm. L.R. (3d) 119 (F.C.T.D.); Canada (Minister of Employment
and Immigration) v. Sharbdeen (1994), 23 Imm. L.R. (2d) 300 (F.C.A.)).
[10]
I
agree with the respondent that the Board did not fail to conduct a proper IFA analysis:
the first prong of that test is whether there is a serious possibility that the
claimant will face persecution in the proposed IFA location (Thirunavukkarasu
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589
(C.A.)). The Board found that, since the Sri Lankan authorities are in control
of the whole territory, and would detain and persecute the respondent upon his
arrival in Sri
Lanka, the
respondent could not return and live anywhere in Sri Lanka without fear of persecution. Since the
possibility of an IFA failed on the first prong of the test, there was no need
for the Board to go on to the second prong and determine whether it was
reasonable to ask the respondent to relocate to a proposed IFA location.
[11]
The
real error alleged by the applicant in the decision is not the application of
the IFA test, but the finding that the respondent would face persecution upon
arrival in Sri
Lanka. The
applicant contends that this finding overlooks the documentary evidence that the
Sri Lankan authorities control entry and exit of the country — since the
authorities let the respondent leave using his own passport, the applicant
contends they must not be interested in him.
[12]
As
the respondent submits, the Board need not specifically mention every piece of
evidence. As my colleague Justice Donald J. Rennie stated in Mejia v.
Minister of Citizenship and Immigration, 2011 FC 1265:
[12] There
is no requirement for the Board to refer to every piece of documentary evidence
or every passage from sources relied on by the claimant which contradict the
information relied on by the Board. The constraint is whether, in examining the
record as a whole, including the contradictory evidence, the decision is
reasonable: Raclewiski v. Canada (Minister of Citizenship and Immigration),
2010 FC 244; Valez v. Canada (Minister of Citizenship and
Immigration), 2010 FC
923.
[13]
When
the record in this case is examined in its totality, the Board’s conclusion was
reasonable. The mere fact that the respondent left Sri Lanka using his own passport
was not determinative of whether he faces a risk of persecution upon return to Sri Lanka. The Board accepted the
respondent’s evidence that he was assisted in fleeing the country by an agent,
and that he used a false piece of corroborating identification. In light of
these facts, it was reasonably open to the Board to find the respondent would
be at risk upon return, even though he managed to exit Sri Lanka without being detained.
[14]
The
Board also found that the respondent was still of interest to authorities,
since his parents have been recently questioned about his whereabouts, and that
Tamils returning to Sri
Lanka
(particularly those with an arrest record) are at risk. These findings were
reasonably open to the Board on the record, and thus the Board’s conclusion
falls within the range of acceptable outcomes defensible in light of the facts
and the law (Dunsmuir, above, at para 47).
* * * * * * * *
[15]
For
the above-mentioned reasons, the application for judicial review is dismissed.
I agree with counsel for the parties that this is not a matter for
certification.
JUDGMENT
The application for judicial
review of the decision of the Refugee Protection Division of the Immigration
and Refugee Board of Canada dated September 6, 2011 is dismissed.
“Yvon
Pinard”
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