Docket: IMM-5549-11
Citation: 2012 FC 543
Ottawa, Ontario, May 4, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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KULASINGAM, VIMALESWARY KRISHNAPILLAI,
KULASINGHAM
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Applicants
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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
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision
of the Refugee Protection Division (RPD) of the Immigration and Refugee Board,
dated 21 July 2011 (Decision), which refused the Applicants’ application to be
deemed Convention refugees or a persons in need of protection under sections 96
and 97 of the Act.
BACKGROUND
[2]
The
Applicants are citizens of Sri Lanka and are currently
living in Markham, Ontario.
They are both sixty years old and have a daughter (Subangini) and grandchildren
living in Canada. The
Secondary Applicant’s brother and sister also live in Canada.
[3]
The
Principal Applicant says that, when he lived in Trincomalee, Sri Lanka, the Sri
Lankan army and police would often visit his home. During the conflict between
the LTTE and the Sri Lankan Government, LTTE members would also sometimes visit
his home and demand money. On two separate occasions, he says he gave them
10,000 Rupees – approximately $80.
[4]
The
Applicants’ son, Pradeep, was kidnapped by unknown people in 2005 and has not
been heard from since. After Pradeep was kidnapped, the Applicants sent their
other son, Prasanna, to claim refugee status in the United Kingdom (UK). The
record is unclear as to how authorities in the UK finally
disposed of that claim. Subangini came to Canada in 2006 and
claimed refugee status. The RPD rejected her claim; however, she was accepted
as a refugee on 29 October 2010 during a PRRA application (see page 284 of the
Certified Tribunal Record (CTR)).
[5]
The
Principal Applicant says the Sri Lankan police and army once stopped him on a
road near Trincomalee. They took money from his wallet and searched his other
baggage. He also says he was once detained by members of the Karuna Faction – a
paramilitary group associated with the Sri Lankan army – on 26 November 2009,
after the government defeated the LTTE in 2009. On this occasion, two men with
pistols took him from his home, blindfolded him, and drove him to a house some
distance away. The men interrogated him about his sons and beat him with a
stick and their bare hands. After holding him captive for two days, the men
released him because the Secondary Applicant paid them a bribe.
[6]
The
Applicants decided that they should leave Sri Lanka and made
arrangements through an agent to do so. They sold their home to pay their way
and set off for Colombo, Sri Lanka, on 5 January 2010.
[7]
When
the Applicants were in Colombo, the police came to the
place they were staying and questioned them. The Principal Applicant says the
police asked him about his national identity card and told him to leave Colombo. The Applicants
contacted their agent, who arranged visas for them to travel to the United
States of America (USA). They flew to Qatar on 17 January 2010 and
to the USA on 18
January 2010. The Applicants came to Canada and claimed refuge
status on 1 February 2010.
[8]
In
her Personal Information Form (PIF), the Secondary Applicant adopted the
Principal Applicant’s narrative for her claim. The RPD joined the Applicants’
claims under subsection 49(1) of the Refugee Protection Division Rules SOR/2002-228
and heard the claims together on 14 July 2011. Only the Principal Applicant
testified at the hearing. The RPD made its Decision on 21 July 2011 and
notified the Applicants of the outcome on 26 July 2011.
DECISION
UNDER REVIEW
[9]
The
RPD denied the Applicants’ claims because it found they did not have a
well-founded fear of persecution under section 96 of the Act. It also found
that the Applicants had an internal flight alternative (IFA) available to them
in Colombo. Further,
any risk the Applicants faced was a generalized one, which excluded them from
protection under section 97 of the Act.
Credibility
[10]
The
RPD concluded that the Applicants did not have a well-founded fear of
persecution because the Principal Applicant was not credible. Although he had
described his capture in November 2009 in his PIF, the Principal Applicant had
not mentioned that his captors were from the Karuna faction until the hearing.
The RPD found this detail was an embellishment. The RPD also said that if he
had been captured by paramilitaries working with the Sri Lankan security forces
he would have been taken to a police station or army camp and not a house as he
said in his PIF
[11]
The
RPD also found that the Principal Applicant was not wanted by Sri Lankan
security forces. His captors were not members of the security forces and he was
released two days after they abducted him and the Secondary Applicant paid them
a bribe. The Applicants were also left alone after the police check at their
hotel in Colombo; they were
not arrested, which showed that the police were not interested in them.
Further, the Applicants left Sri Lanka without incident. The
RPD reasoned that if they were allowed to leave Sri Lanka freely, this
showed they were not on any watch list, even if their agent had bribed the
authorities at the airport, as they said he had.
[12]
Since
the Applicants claimed protection on the basis of the risk they faced from the
Karuna faction, which was associated with Sri Lankan security forces, the fact
that they were not wanted by the security forces meant they were not at risk on
return to Sri
Lanka.
The RPD concluded the Applicants’ fear of persecution was not well-founded on
this basis.
Internal
Flight Alternative
[13]
In
the alternative to its finding that their fear was not well-founded, the RPD
found that the Applicants had an IFA available to them in Colombo.
[14]
When
the RPD raised the IFA issue at the hearing, the Principal Applicant said he
could not live in Colombo because the Karuna faction would find him
there.
[15]
The
RPD found that the Applicants could settle in Colombo because
there is a large Tamil population there. The Applicants have relatives in
Colombo and the Principal Applicant can speak Sinhalese – the majority language
in Colombo – although
he is not fluent. The Principal Applicant also owned and operated his own
business in Trincomalee, which the RPD found he could also do in Colombo.
[16]
The
RPD also looked at whether the Applicants would be at risk in Colombo. It noted
that the war between the LTTE and the Sri Lankan government is over and,
according to a report from the Danish Immigration Service, the situation for
Tamils in Sri
Lanka
has improved. It also acknowledged that some risk remained in Sri Lanka to young
Tamil men and that 30% of the population in Colombo is Tamil,
while 41% of the population is Sinhalese. The RPD concluded, however, that the
Applicants’ risk of persecution in Colombo is low because they are
not young Tamil men and do not have a profile which would attract undue
attention from the security forces.
[17]
The
RPD concluded that the Applicants have an IFA available in Colombo which meets
both requirements established by the jurisprudence.
Generalized
Risk
[18]
The
RPD also found that any risk the Applicants faced was generalized, which was
fatal to any claim under section 97.
[19]
The
RPD noted that extortion by paramilitaries and Sri Lankan security forces is a
problem in post-civil-war Sri Lanka. It also noted that
extortion is on the rise there. The RPD found that the Applicants would be
former residents returning from abroad and might be attractive targets for
extortion on that basis. However, although some people might be targeted for
their wealth, this does not remove them from a general risk of crime (see Vickram
v Canada (Minister of
Citizenship and Immigration) 2007 FC 457). While they might be
perceived as wealthy, any risk the Applicants faced was generalized and so
excluded them from protection under paragraph 97(1)(b) of the Act.
ISSUES
[20]
The
Applicants raise the following issues in this case:
1.
Whether
the RPD’s credibility finding was reasonable;
2.
Whether
the RPD’s finding they did not have a well-founded fear of persecution was
reasonable;
3.
Whether
the RPD’s finding they had an IFA available was reasonable;
4.
Whether
the RPD’s finding they faced a generalized risk was reasonable.
STANDARD
OF REVIEW
[21]
The
Supreme Court of Canada in Dunsmuir v New Brunswick 2008 SCC 9, held
that a standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to a particular question
before the court is well-settled by past jurisprudence, the reviewing court may
adopt that standard of review. Only where this search proves fruitless must the
reviewing court undertake a consideration of the four factors comprising the
standard of review analysis.
[22]
In
Aguebor v Canada (Minister of Employment and Immigration), [1993]
FCJ No 732 (FCA) (QL) the Federal Court of Appeal held at paragraph 4 the
standard of review on a credibility finding is reasonableness. Further, in Elmi
v Canada (Minister of Citizenship and Immigration), 2008 FC 773, at
paragraph 21, Justice Max Teitelbaum held that findings of credibility are
central to the RPD’s finding of fact and are therefore to be evaluated on a
standard of review of reasonableness. Finally, in Wu v Canada (Minister of
Citizenship and Immigration) 2009 FC 929, Justice Michael Kelen held at
paragraph 17 that the standard of review on a credibility determination is
reasonableness. The standard of review on the first issue is reasonableness.
[23]
The
standard of review applicable to the RPD’s finding that the Applicants’ fear of
persecution was not well-founded is reasonableness. Justice Sandra Simpson
found that the standard of review on this issue was reasonableness at paragraph
7 of Moreno v Canada (Minister of
Citizenship and Immigration) 2011 FC 841. Justice Leonard Mandamin made
a similar finding in Jean v Canada (Minister of
Citizenship and Immigration) 2010 FC 1014 at paragraph 9.
[24]
In
Rosales v Canada (Minister of Citizenship and Immigration) 2008 FC 257,
Justice Frank Gibson held at paragraph 13 that the RPD’s finding that in IFA
was available is patent unreasonableness. More recently, Justice Luc Martineau
held at paragraph 8 of Martinez v Canada (Minister of Citizenship and
Immigration) 2012 FC 5 that the standard of review on an IFA finding is
reasonableness (see also Kumar v Canada (Minister of Citizenship and
Immigration) 2012 FC 30 at paragraph 16). The standard of review on the
third issue is reasonableness.
[25]
The
reasonableness standard is also applicable to the RPD’s finding that the
Applicants faced a generalized risk in Sri Lanka. Justice
David Near determined that reasonableness was the appropriate standard of
review on this issue in V.L.N. v Canada (Minister of Citizenship and
Immigration) 2011 FC 768, at paragraphs 15 and 16. As Justice André Scott
found in Vasquez v Canada (Minister of Citizenship and Immigration) 2011 FC 477,
a generalized risk finding
involves questions of mixed fact and law to be evaluated on a standard of
reasonableness (paragraphs 13 and 14). The standard of review on the fourth issue is reasonableness
(see also Innocent v Canada (Minister of Citizenship and Immigration) 2009 FC 1019).
[26]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and
Immigration) v
Khosa 2009 SCC 12 at paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
STATUTORY
PROVISIONS
[27]
The
following provisions of the Act are applicable in this case:
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Convention refugee
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside each of their countries of
nationality and is unable or, by reason of that fear, unwilling to avail
themself of the protection of each of those countries; or
[…]
Person in Need of Protection
97. (1) A person in need of protection is a
person in Canada whose removal to their country or countries of nationality or, if they
do not have a country of nationality, their country of former habitual
residence, would subject them personally
(a) to a danger, believed on substantial grounds
to exist, of torture within the meaning of Article 1 of the Convention
Against Torture; or
(b) to a risk to their life or to a risk of cruel
and unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part
of that country and is not faced generally by other individuals in or from
that country,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care
[…]
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Définition de «
réfugié »
96. A qualité de
réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité,
de son appartenance à un groupe social ou de ses opinions politiques :
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
[…]
Personne à protéger
97. (1) A qualité
de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au risque,
s’il y a des motifs sérieux de le croire, d’être soumise à la torture au
sens de l’article premier de la Convention contre la torture;
b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
(i) elle ne peut ou,
de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est
exposée en tout lieu de ce pays alors que d’autres personnes originaires de
ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou
le risque ne résulte pas de sanctions légitimes — sauf celles infligées au
mépris des normes internationales — et inhérents à celles-ci ou occasionnés
par elles,
(iv) la menace ou le
risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux
ou de santé adéquats.
[…]
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ARGUMENTS
The
Applicants
[28]
The
Applicants say the RPD ignored evidence when it found they are not Convention
refugees. The RPD did not consider how the disappearance of Subangini from Sri Lanka and her
successful refugee claim means that they would be exposed to a risk of
persecution. They point to Srichandradas v Canada (Minister of
Citizenship and Immigration) 2003 FC 829, at paragraph 4, where Justice
Elizabeth Heneghan held that
In my opinion, the Board committed a reviewable error in failing
to consider the impact upon the Applicants, in Sri Lanka, of the finding that their daughter had been found to be a
Convention refugee and would not accompany them back to Sri Lanka. The Board did not consider
that this finding might expose the Applicants to persecutory treatment by the
SLA and the Sri Lankan authorities on the basis of a suspicion that their
daughter had been recruited by the LTTE. The Board did not apply the law which
requires that a determination of Convention refugee status must be a
forward-looking inquiry: see Mileva v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 398 (C.A.).
The Board’s conclusion that the SLA would not suspect them of supporting the
LTTE in the future is a reversible error, having regard to the fact that the
Applicants would be returned to Sri Lanka without their daughter. That is a circumstance that could feed
suspicion by the SLA that the daughter has joined
the LTTE.
[29]
When
the RPD did not account for the risk the Applicants faced by association with
Subangini, it committed the same error as occurred in Srichandradas.
[30]
The
Applicants also argue that the RPD’s finding that the Principal Applicant was
not credible was unreasonable. Although he added the detail about his captors
being Karuna members at the hearing, he only learned this himself after he
submitted PIF to the RPD. In his PIF, he wrote that his captors pushed him into
a white van. He later learned from members of his community that Karuna members
travel in white vans. Contrary to the RPD’s conclusion, the Principal Applicant
provided spontaneous and credible testimony, so the RPD’s credibility finding
is unreasonable.
Risk
[31]
The
RPD’s conclusion on risk was unreasonable because it was based on an erroneous
inference. The Applicants point to the Principal Applicant’s testimony that he
was targeted by Karuna members and that their agent paid a bribe at the
airport. This testimony shows that the RPD’s inference from their trouble-free
exit through the Colombo airport was unreasonable.
IFA
[32]
The
Applicants also challenge the RPD’s finding that they have an IFA. This finding
is unreasonable because, at sixty years old, they are elderly and it will be
difficult for them to relocate. The RPD based its IFA finding in part on the
fact that the Principal Applicant’s father was a police sergeant who spoke
Sinhalese, but the Applicants say the Principal Applicant cannot speak
Sinhalese very well. They also direct the Court’s attention to the Principal
Applicant’s testimony that the Colombo police told them to leave Colombo.
[33]
The
Applicants also say that the documentary evidence before the RPD shows that
they actually face a risk in Colombo. When it concluded that
their risk was low, the RPD ignored a report from the Department of State in the
USA which their
counsel raised at the RPD hearing. The RPD’s conclusion on IFA is unreasonable
because the RPD ignored this evidence.
The
Respondent
[34]
The
Respondent argues that the Decision should stand because it was based on
reasonable credibility findings and a reasonable finding that the Applicants
have an IFA available to them.
[35]
Subangini’s
refugee claim was not relevant, so it was not an error for the RPD not to
consider it. In Rahmatizadeh v Canada (Minister of
Employment and Immigration), [1994] FCJ No 578 (QL) Justice Marc
Nadon had this to say at paragraph 8:
Before concluding, however, I would like to make the following
comments. In paragraph 31 of his memorandum, the applicant asserts that the
Refugee Division accepted his sister’s refugee claim on April 9, 1992. The mere
fact of proving that his sister had been found to be a refugee does not carry a
lot of weight, since the members of the Division who made that decision made it
on the basis of the facts in the record. Why did the applicant not call his
sister and brother-in-law to testify to establish that he is of Kurdish
nationality? The Division was not bound by a decision made by another panel
since it may be that the other panel made an incorrect decision.
[36]
The
RPD was not obligated to consider Subangini’s claim because each case must be
determined on its own merits and the RPD is not bound by its own decisions (see
Bakary v Canada (Minister of Citizenship and Immigration) 2006 FC 1111
at paragraph 10).
[37]
It
was reasonable for the RPD to conclude the Principal Applicant was not credible
because he embellished his story. This Court has held that a failure to include
a key fact in a PIF is an appropriate basis for an adverse credibility finding
(see Sahi v Canada (Minister of
Citizenship and Immigration) 2001 FCT 527 at paragraph 18 and Huang v
Canada (Minister of
Citizenship and Immigration) 2008 FC 1266 at paragraph 17).
[38]
Although
the Applicants challenge the RPD’s finding that their fear was not
well-founded, this finding was reasonable. The RPD based its conclusion on the
following facts:
i.
the
Applicants were cleared after the police check at their hotel;
ii.
the
Principal Applicant was not taken to a police or army camp when he was
abducted, though he said his abductors were associated with the Sri Lankan
authorities;
iii.
the
Applicants had no trouble leaving Sri Lanka.
[39]
The
Applicants have not shown that the RPD could not have drawn the inferences it
did, so the Decision should stand.
[40]
The
RPD properly applied the test for an IFA. In Ranganathan v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 2118 (FCA), the
Federal Court of Appeal held that claimants must demonstrate a serious
possibility of persecution in the proposed flight location. Claimants must also
demonstrate that requiring them to seek refugee in the proposed location would
be unreasonable in the circumstances. In the instant case, the Applicants did
not demonstrate that they faced a serious possibility of persecution in Colombo. The RPD
reasonably concluded that they were not at risk there and that it was
reasonable for them to seek refuge in Colombo. The availability of an
IFA is conclusive against a refugee claim, so the RPD’s finding that the
Applicants are not Convention refugees or persons in need of protection was
reasonable. The Applicants are simply asking the Court to re-weigh the
evidence.
ANALYSIS
[41]
The
Applicants raise a number of issues for review but, in my view, the IFA finding
is determinative and does not contain a reviewable error.
[42]
The
Applicants say that the finding was based on the RPD’s reasoning that the
Principal Applicant’s father was a sergeant in the police force who spoke
Sinhalese. They say the Principal Applicant is elderly, his father is deceased,
and he does not speak Sinhalese well.
[43]
A
reading of the Decision reveals that the RPD was well aware of the factors the
Applicants have raised and took into account a wide range of relevant
considerations, some of which the Applicants do not even challenge. When these
factors are reviewed against the documentary evidence, I do not think I can say
that the IFA finding falls outside the Dunsmuir range.
[44]
Although
the RPD mistakenly said the Applicants had relatives in Colombo (they did
have acquaintances there who they occasionally stayed with, and who visited the
Applicants) this is not material enough to warrant setting the Decision aside.
Nor do I think that the proposition for which Danish Immigration Service report
is cited is undermined in any material way by the later April 2011 US DOS
report.
[45]
In
any event, the factors cited by the Applicants as to why Colombo is not a
reasonable IFA are not in line with the governing jurisprudence. In Ranganathan,
above, the Federal Court of Appeal had the following to say on point, at
paragraphs 14 to 16:
I
agree with Rothstein J., as he then was, in Kanagaratnam v. Canada (Minister of Employment and Immigration) (1994) 28 Imm. L.R. (2d) 44 (F.C.T.D.),
that the decision of our Court in Thirunavukkarasu does not exclude, as a
relevant factor on the issue of the reasonableness of the IFA, the absence of
relatives in or in the vicinity of the safe area. It makes it obvious though
that more than the mere absence of relatives is needed in order to make an IFA
unreasonable. Indeed, there is always some hardship, even undue hardship,
involved when a person has to abandon the comfort of his home to leave in a
different part of his country where he has to seek employment and start a new
life away from relatives and friends. This is not, however, the kind of undue
hardship that this Court was considering in Thirunavukkarasu.
We
read the decision of Linden J.A. for this Court as setting up a very high
threshold for the unreasonableness test. It requires nothing less than the
existence of conditions which would jeopardize the life and safety of a
claimant in travelling or temporarily relocating to a safe area. In addition,
it requires actual and concrete evidence of such conditions. The absence of
relatives in a safe place, whether taken alone or in conjunction with other
factors, can only amount to such condition if it meets that threshold, that is
to say if it establishes that, as a result, a claimant’s life or safety would
be jeopardized. This is in sharp contrast with undue hardship resulting from
loss of employment, loss of status, reduction in quality of life, loss of
aspirations, loss of beloved ones and frustration of one’s wishes and
expectations.
There
are at least two reasons why it is important not to lower that threshold.
First, as this Court said in Thirunavukkarasu, the definition of refugee under
the Convention “requires claimants to be unable or unwilling by reason of fear
of persecution to claim the protection of their home country in any part of
that country”. Put another way, what makes a person a refugee under the Convention
is his fear of persecution by his home country in any part of that country. To
expand and lower the standard for assessing reasonableness of the IFA is to
fundamentally denature the definition of refugee: one becomes a refugee who has
no fear of persecution and who would be better off in Canada physically, economically and emotionally than in a safe place in his own country.
[46]
On
the evidence which was before the RPD, it was reasonable for it to conclude
that the situation they faced in Colombo did not jeopardize the
Applicants’ lives or safety. They have not shown me that the factors they cite
amount to a risk such that the Decision must be returned for reconsideration.
[47]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
The
application for judicial review is dismissed.
2.
There
is no question for certification.
“James
Russell”
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