Docket:
IMM-6072-11
Citation:
2012 FC 752
Ottawa, Ontario, June 14, 2012
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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THINESH NADARASA
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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
I. INTRODUCTION
[1]
The
Applicant, a citizen of Sri Lanka, claimed under sections 96 and 97(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27. His claim was based on a fear
of persecution due to his ethnicity as a Tamil male from the north and
perceived support of the Liberation Tigers of Tamil Eelam [LTTE]. The
Immigration and Refugee Board [Board] denied his claim on grounds of
credibility and changed circumstances. This is the judicial review of that
Board decision.
[2]
The
Court, in granting this judicial review, is concerned that a part of the claim
that was briefly asserted, namely, that the Applicant also feared persecution
as a failed refugee claimant, was not addressed by the Board. While the issue
of failed refugee claimant touches both the credibility finding and the
conclusion on changed circumstances, the treatment of it stands on a separate
legal basis.
II. BACKGROUND
[3]
The
Applicant cited numerous examples occurring over the period 2004-2010 where he
was stopped by the army, harassed and threatened. He also claimed to have been
detained and to have been beaten at various times. Many of the instances of
detention were solved by the payment of bribes.
[4]
On
January 7, 2010, the Applicant left Sri Lanka and after a four-month detention
in the US, where at least legal assistance was available to him if he wanted to
seek asylum, he arrived in Canada at the beginning of October 2010. He never
claimed asylum in the US.
[5]
The
Board reached its conclusions on the merits of the claim because of negative
credibility findings. The Board did not accept that the detentions were
anything more than brief and noted that the Applicant was released either with
a warning to stay away from the LTTE or upon the payment of a bribe. The fact
that the Applicant was released in all instances led the Board to conclude that
there was no warrant for his arrest and that he was not on any government
security watch list.
[6]
The
Board did not believe the Applicant’s story that members of a Tamil
paramilitary group went to his parents’ home looking for him after he had left
the country. The conclusion was grounded on the basis that this group had
access to police data bases which would have recorded his departure from Sri Lanka. Therefore, so the reasoning went, the paramilitary group would have known that
the Applicant had left the country. The Board viewed this story as an attempt
by the Applicant to embellish his claim.
[7]
With
respect to the failure to claim in the US, the Board concluded that if the
Applicant had a genuine fear about returning to Sri Lanka, he would have taken
the opportunity to claim in the US where he was in immigration custody with
resources available to him. This failure spoke to the well-foundedness of his
fear.
[8]
The
Board further held that even if credibility was not the determinative issue,
the changed circumstances in Sri Lanka would be. The Board reviewed the
legislation and jurisprudence governing changed circumstances in the refugee
claims context.
[9]
The
Board relied heavily on the November 11, 2010 UK Border Agency Report because
it is the most recent report, by an independent body, and based on a vast
number of external sources. While recognizing some recent negative reports
related to Tamils, the Board held that on the balance of probabilities, the
situation for Tamils in Sri Lanka had improved significantly in the last two
years. The Board concluded that there was less than a serious chance of
persecution based on the Applicant’s ethnicity.
[10]
The
Board held that if there was risk of extortion and robbery of people viewed as
wealthy (which category could include the Applicant), this was a generalized
and prevalent risk faced by the population at large. As such, it was a risk which
was excluded by paragraph 97(1)(b).
[11]
The
Board did not address the Applicant’s claim that he faced a risk of persecution
because he was a failed refugee claimant. His counsel had submitted documents,
referred to two of them and had briefly argued the point.
III. ANALYSIS
A. Issues
[12]
The
issues in this judicial review are:
1) Did
the Board err in its negative credibility determination?
2) Did
the Board err in failing to consider the “failed refugee claimant grounds of
persecution”?
[13]
The
Applicant did not challenge the Board’s finding of “changed circumstances”. In
the normal course, the changed circumstances finding would be dispositive;
however, in this case, the Board failed to address the failed refugee claimant
issue.
B. Standard of Review
[14]
It
is well settled law that the decisions of the Board on credibility and
implausibility are largely factual in nature and deserving of a significant
amount of deference. The standard of review is reasonableness (see, for
example, Cekim v Canada (Minister of Citizenship and Immigration), 2011
FC 177 at para 6 (available on CanLII)).
[15]
With
respect to the second issue, the failure to consider relevant grounds of
persecution is a question of law and must be assessed on the standard of
correctness (Ghirmatsion v Canada (Minister of Citizenship and Immigration),
2011 FC 519 at para 49, 389 FTR 165; Solodovnikov v Canada (Minister of
Citizenship and Immigration), 2004 FC 1225 at para 10, 41 Imm LR (3d)
259; Singh v Canada (Secretary of State) (1994), 80 FTR 132, [1994]
FCJ No 931 (QL) at para 14).
C. Credibility
[16]
Given
the result in this judicial review, the Court will refrain from a complete
analysis of the first issue regarding credibility. It does not affect the
Court’s conclusion on the second issue which issue is a matter of law.
[17]
It
is sufficient to say that where credibility is based on implausibility, as is
the case here, the implausibility findings must be reasonably drawn and must be
set out in “clear and unmistakable terms” (Valtchev v Canada (Minister of
Citizenship and Immigration, 2001 FCT 776 (available on CanLII)). In Gjelaj
v Canada (Minister of Citizenship and Immigration), 2010 FC 37 at para 4
(available on CanLII), the requirement was described as the Board providing “a
reliable and verifiable evidentiary base against which the plausibility of the
Applicant’s evidence might be judged”.
[18]
It
is of concern that the Board cited no evidentiary references for the finding
that the paramilitary group had access to police data bases or for whether such
data bases, if viewed by the paramilitary group, had information about who had
left the country or for whether such paramilitary groups would, in fact, check
the police data bases.
[19]
Even
if the Applicant failed in the credibility challenge which was based on his
fear of persecution due to ethnicity, the failure to address the question of
his fear based on being a failed refugee claimant remained open.
D. Failed Refugee
Claimant
[20]
The
legal issue of the right to have one’s grounds for refugee/protection
considered transcends the unchallenged finding of changed circumstances. The
finding of changed circumstances does not dispose of or render moot the claim
of fear based on being a failed refugee claimant.
[21]
In
the present case, while this issue was not the primary ground of the
Applicant’s claim for protection, the issue was raised by counsel in brief
submissions:
There are several articles that I will refer to in
my package at C-2; the first one is at page one where it talks about the fact
that returning asylum seekers going back to Sri Lanka are all handed over to
the CID and Sri Lankan police and many of them are detained and are abused
during these detentions. The fact that these people coming from abroad are
arrested and abused by the authorities was also confirmed by an Amnesty article
at page six which refers to several of the people that have been returned from Australia and how they have been badly abused upon their return.
[22]
While
counsel said that he would refer to several articles, he notes two in
particular which refer to the situation of returning failed asylum seekers and
the mistreatment they experienced.
[23]
This
evidence must also be considered in the context of the finding of changed
circumstances and in particular, the finding that there are still problems
affecting Tamils.
[24]
While
Courts are not to engage in microscopic examinations of the Board’s record and
the reasonableness of a decision should be based on the whole of the decision,
every applicant has a legal right to have the asserted grounds for a claim
considered, if sufficiently raised.
[25]
As
held by Justice Snider in Ghirmatsion, above, even the failure to
explain why a ground of persecution was not assessed constitutes a reviewable
error. Whether this was because it made the decision unreasonable or whether it
was an error of law was immaterial in that case.
[26]
I
conclude that it is an error of law as both a denial of natural justice/breach
of fairness as well as one of jurisdiction as in not exercising jurisdiction,
to fail to address an issue of persecution that was reasonably clearly raised.
[27]
With
respect, I would distinguish the decision in Paramanathan v Canada (Minister of Citizenship and Immigration), 2012 FC 338 (available on CanLII), on
the basis that there the secondary grounds of risk were not sufficiently raised
to establish the obligation on the Board to address the issue. In the present
case, that further ground was sufficiently raised to trigger the obligation on
the Board to address it.
[28]
The
Board, having failed to address the failed refugee claimant issue, erred in law
and the decision cannot stand.
IV. CONCLUSION
[29]
Therefore,
this judicial review will be granted and the matter returned to the Board for a
new determination by a differently constituted panel.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review is granted and the matter is returned to the
Board for a new determination by a differently constituted panel.
“Michael
L. Phelan”
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