Date:
20120704
Docket:
IMM-8703-11
Citation:
2012 FC 844
Ottawa, Ontario, July
4, 2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
|
|
MANIVANNAN
SABARATNAM
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant seeks judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the Board), dated
November 9, 2011, which found that the applicant was neither a Convention
refugee nor a person in need of protection pursuant to sections 96 and 97 of
the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).
For the reasons that follow the application is granted.
Facts
[2]
The
applicant, Manivannan Sabaratnam, is a Tamil citizen of Sri Lanka. He states that he was detained by security forces on two occasions. The first occurred
in November 2007, after his neighbour was killed allegedly because he was
suspected of recruiting young men for the Liberation Tigers of Tamil Eelam
(LTTE). At that time, the applicant was taken into custody and interrogated. The
applicant fled to Colombo in December 2007, fearing he would meet the same fate
as his neighbour.
[3]
On
January 7, 2009, the applicant states that he and 12 other youths were arrested
in connection with a railway bombing. He was detained for six months in a
maximum security prison in Colombo, during which time he was beaten. After six
months he and the other youths were ordered released by a magistrate because
there was no evidence connecting them with the bombing.
[4]
The
applicant alleges that in June or July 2010, a group of Tamil militants tried
to extort him and then attempted to abduct him when he told them he had no
money. He states he also evaded a subsequent attempted kidnapping by men who
tried to pull him into a van. The applicant states that his uncle assisted him
in obtaining a passport and travel papers and hired an agent to help him flee Sri Lanka. After travelling through other countries he arrived in Canada on February 5, 2011.
Decision Under Review
[5]
After
reviewing the applicant’s allegations the Board found that the applicant’s fear
of persecution was not well-founded, based on credibility concerns. The Board
found in the alternative that there was a change in circumstances in Sri Lanka and further found that the risk alleged by the applicant was a generalized risk.
Credibility
[6]
The
Board noted that the applicant admitted he had no problem obtaining a police
clearance to get his passport in 2008. The Board found that if the applicant
had been on the government’s “security watch list”, he would not have been
given a police clearance and would have been arrested. The Board also noted
that the applicant was not arrested and had no problems while under regular
checks from Colombo police, and therefore found there was no warrant out for
his arrest and the police were not looking for him.
[7]
The
Board further found that the applicant’s ability to leave the country (albeit
with the assistance of an agent) shows that he was not a wanted person and thus
does not face arrest upon return to Sri Lanka. The Board thus found that the
applicant’s fear of persecution was not well-founded.
Change of Circumstances
[8]
The
Board found, in the alternative, that if credibility was not determinative, the
change of circumstances would nevertheless be dispositive. The Board cited
section 108(1)(e) of the IRPA, which states that a refugee claim will be
rejected if “the reasons for which the person sought refugee protection have
ceased to exist.” The Board noted that whether there is a change of
circumstances is a factual determination and the durability, effectiveness and
substantiality of the change are relevant. The Board also noted the Court of
Appeal’s decision in Fernandopulle v Canada (Minister of Citizenship and
Immigration), 2005 FCA 91, which found that past persecution does not
create a legal presumption of future persecution.
[9]
The
Board acknowledged that many young Tamils faced persecution by the LTTE, Sri
Lankan security forces and paramilitary groups. The Board found that, based on
the applicant’s circumstances and the evidence of the current situation in Sri Lanka, the applicant faces less than a serious chance of persecution based on his
ethnicity, and that it is less than likely that he will be harmed pursuant to
section 97 of the IRPA.
[10]
The
Board noted the evidence that, due to the significant improvements in the
security of Sri Lanka, there is no longer the need for group-based protection
for Tamils, but rather claims should be assessed based on certain risk
profiles, such as those with suspected LTTE links. Since the applicant did not
fit the profile of those at risk based on the most recent information, the Board
found that the change of circumstances were such that the applicant was not at
risk.
Standard of Review and Issue
[11]
The
issue raised by this application is whether the Board’s decision is reasonable:
Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. While there has
been some disagreement on the appropriate standard of review for this question,
the Court of Appeal’s reasoning in Yamba v Canada (Minister of Citizenship
and Immigration), [2000] FCJ No 457 (CA) suggests a correctness standard.
The Board is obligated to consider section 108(4) in every case in which it
finds changed circumstances under section 108(1)(e). Thus, while any
conclusion reached under section 108(4) would be reviewed on a standard of
reasonableness, there is no deference in whether to consider section 108(4).
Analysis
[12]
While
many issues have been advanced by the applicant, in my view the application can
be determined solely based on the Board’s analysis of whether there are changed
circumstances in Sri Lanka such that the reasons for protection have ceased to
exist, pursuant to section 108(1)(e) of the IRPA.
[13]
The
respondent argues that credibility was determinative of the application.
However, the Board’s credibility finding was that it did not believe the
applicant was currently on a security watch list or wanted by the authorities. As
the applicant submits, he did not allege that he was currently wanted by
police; rather, he feared persecution based on his past experiences of
persecution by security forces and militant groups. Nowhere in its reasons did
the Board state that it disbelieved the applicant’s testimony about his
detention which was corroborated by documentary evidence. Therefore, the
Board’s finding that the applicant was not wanted cannot have been determinative
without the accompanying finding that individuals with his profile are no
longer at risk due to changed circumstances.
[14]
The
applicant argues that the Board applied the wrong test for whether there were
changed circumstances pursuant to section 108(1)(e) of the IRPA, and
that its analysis of the current circumstances was insufficient. I find that
it is not necessary to consider these arguments because the Board erred when,
having found changed circumstances under section 108(1)(e), it failed to consider
the compelling reasons exception under section 108(4) of the IRPA. The
relevant portions of section 108 state:
|
Rejection
108. (1) A claim for refugee
protection shall be rejected, and a person is not a Convention refugee or a
person in need of protection, in any of the following circumstances:
[…]
(e) the reasons for which the
person sought refugee protection have ceased to exist.
[…]
Exception
(4) Paragraph (1)(e) does not
apply to a person who establishes that there are compelling reasons arising
out of previous persecution, torture, treatment or punishment for refusing to
avail themselves of the protection of the country which they left, or outside
of which they remained, due to such previous persecution, torture, treatment
or punishment.
|
Rejet
108. (1) Est rejetée la demande
d’asile et le demandeur n’a pas qualité de réfugié ou de personne à protéger
dans tel des cas suivants :
[…]
e) les raisons qui lui ont fait
demander l’asile n’existent plus.
[…]
Exception
(4) L’alinéa (1)e) ne s’applique
pas si le demandeur prouve qu’il y a des raisons impérieuses, tenant à des
persécutions, à la torture ou à des traitements ou peines antérieurs, de
refuser de se réclamer de la protection du pays qu’il a quitté ou hors duquel
il est demeuré.
|
[15]
The
Board clearly found that the reasons the applicant sought refugee protection
have ceased to exist pursuant to section 108(1)(e). Therefore, as mandated by
the Court of Appeal in Yamba, the Board was obligated pursuant to
section 108(4) (or section 2(3) in the previous IRPA) to consider
whether there were “compelling reasons” not to apply section 108(1)(e), due to
the past persecution and torture of the applicant. The Court of Appeal stated
in Yamba at paragraph 6:
In summary, in every case in which the Refugee
Division concludes that a claimant has suffered past persecution, but this has
been a change of country conditions under paragraph 2(2)(e), the Refugee
Division is obligated under subsection 2(3) to consider whether the evidence
presented establishes that there are "compelling reasons" as
contemplated by that subsection. This obligation arises whether or not the
claimant expressly invokes subsection 2(3). That being said the evidentiary
burden remains on the claimant to adduce the evidence necessary to establish
that he or she is entitled to the benefit of that subsection.
[16]
Thus,
the obligation to consider the “compelling reasons” exception arises in every
case in which a claimant is found to have suffered past persecution, as the
Board accepted in this case, not having made any clear finding disbelieving the
applicant’s testimony about his detention and torture. The Board therefore
erred by failing to consider section 108(4) of the IRPA.
[17]
I
note that there are some cases of this Court that have held that it will only
be an error to fail to consider section 108(4) if there is prima facie
evidence of “appalling” or “atrocious” past persecution, since that exception
is only intended to arise in extraordinary circumstances: Alfaka Alharazim v
Canada (Minister of Citizenship and Immigration), 2010 FC 1044, para 49. However,
the reasoning in this line of cases was not followed in Kumarasamy v Canada (Minister of Citizenship and Immigration), 2012 FC 290.
[18]
I
find that the apparent tension between the decision in Yamba and Alfaka
Alharazim does not affect the outcome of this application, however. The
applicant testified to experiencing torture while in detention for six months
and the Board made no adverse credibility finding in respect of that testimony.
Thus, even if prima facie evidence of appalling or atrocious past
persecution is required the applicant satisfies that standard and the Board
therefore erred by failing to consider section 108(4) of the IRPA. The
application is therefore granted.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review is granted. The matter is referred back to the
Immigration Refugee Board for reconsideration before a different member of
the Board’s Refugee Protection Division. No question for certification has
been proposed and the Court finds that none arises.
"Donald
J. Rennie"
Email this Content