Docket: IMM-6748-11
Citation: 2012 FC 670
Ottawa, Ontario, May 31,
2012
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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KARTHIKAN NADARAJAH
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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]
This
is an application for judicial review of a decision of the Immigration and
Refugee Board (the Board), rendered on September 1, 2011, wherein the Board
determined that Mr. Karthikan Nadarajah (Mr. Nadarajah) is neither a Convention
refugee nor a person in need of protection as per sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
For
the following reasons, this application for judicial review is allowed.
II. Facts
[3]
Mr.
Nadarajah is a 26 year old Tamil farmer from the North of Sri Lanka.
[4]
In
May 2006, Mr. Nadarajah was arrested by the Sri Lankan army. He was detained,
interrogated and physically abused by the army. He was released on the same
day.
[5]
Mr.
Nadarajah’s uncle complained about that unlawful detention and was subsequently
murdered.
[6]
Mr.
Nadarajah’s father arranged for his son to stay with friends in Colombo for about a
year until November of 2009. Upon his return from Colombo, Mr.
Nadarajah’s family found out that the Eelam People Democratic Party [EPDP] was
looking for him. As a result, his father decided to hire an agent to help his
son leave the country. Mr. Nadarajah left Sri Lanka through the
Katunayake airport on May 29, 2010. He filed his refugee claim on June 15,
2010.
[7]
The
Board concluded its decision as follows: Mr. Nadarajah is “neither a Convention
refugee nor person in need of protection for the reason that the [Board] does not
find his fear to be well-founded. Alternatively, the [Board] finds there is a
change in circumstances relative to country conditions and/or the risk he
refers to is an excluded generalized risk” (see Board’s decision at para 3).
III. Legislation
[8]
Sections
96 and 97 of the IRPA provide as follows:
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Convention refugee
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Définition de « réfugié »
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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,
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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 :
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(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
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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;
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(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
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b) soit, si elle n’a pas
de nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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Person in need of protection
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Personne à protéger
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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
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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 :
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(a) to a danger, believed on substantial
grounds to exist, of torture within the meaning of Article 1 of the
Convention Against Torture; or
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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;
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(b) to a risk to their life or to a risk of
cruel and unusual treatment or punishment if
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b) soit à une menace à
sa vie ou au risque de traitements ou peines cruels et inusités dans le cas
suivant :
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(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait,
ne veut se réclamer de la protection de ce pays,
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(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,
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(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,
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(iii) the risk is not inherent or incidental to
lawful sanctions, unless imposed in disregard of accepted international
standards, and
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(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,
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(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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(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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Person in need of protection
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Personne à protéger
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(2) A
person in Canada who is a member of
a class of persons prescribed by the regulations as being in need of
protection is also a person in need of protection.
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(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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IV. Issues and
standard of review
A.
Issues
1. Did
the Board breach its duty of procedural fairness by failing to inform Mr.
Nadarajah that it would take notice of facts regarding the security procedures
at the airport of Katunayake?
2. Are
the Board’s credibility findings reasonable?
3. Did
the Board err in its assessment of a change in the country conditions?
4. Did
the Board err in concluding that Mr. Nadarajah faced a generalized risk in Sri Lanka?
B.
Standard
of review
[9]
Questions
of procedural fairness must be reviewed under the correctness standard (see Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1
SCR 339 at para 43).
[10]
A
credibility finding is a question of fact that is reviewable on a
reasonableness standard (see
Lawal v Canada (Minister of Citizenship and Immigration), 2010 FC
558, [2010] FCJ
No 673 at para 11).
[11]
Assessment
of the country conditions is factual in nature and must also be reviewed on a
reasonableness standard (see Rahman v Canada (Minister of
Employment and Immigration), [1994] FCJ No 562 (FCA) at para 1).
[12]
As
for the issue of personalized risk, the applicable standard is reasonableness
(see Innocent v Canada (Minister of
Citizenship and Immigration), 2009 FC 1019, [2009] FCJ No 1243 at
para 36).
IV. Parties’
submissions
A.
Mr.
Nadarajah’s submissions
[13]
Mr.
Nadarajah submits that the Board breached its duty of procedural fairness
because it failed to notify him of its intention to take cognizance of facts
that were not included in the record and rely on its specialized knowledge (see
Galindo v Canada (Minister of Employment and Immigration), [1981] 2 FC
781; N’Sungani v Canada (Minister of Citizenship and Immigration), 2004
FC 1759 [N’Sungani]). According to Mr Nadarajah, the Board unreasonably
asserted that young Tamil males have no problems leaving the country. It failed
to provide Mr. Nadarajah the opportunity of making submissions on this issue.
[14]
Mr.
Nadarajah also argues that the Board made unreasonable credibility findings. He
notes that when a tribunal makes a credibility finding it must do so in clear
and express terms (see Hilo v Canada (Minister of
Employment and Immigration), [1991] FCJ No 228). Mr. Nadarajah asserts that
this requirement was not met. Credibility findings were made in the present
case without regard to the evidence adduced before the Board.
[15]
Furthermore,
the Board made a separate assessment on the change of country conditions in Sri Lanka. It
concluded that the country conditions had improved further to the defeat of the
Liberation Tigers of Tamil Eelam in 2009. However, Mr. Nadarajah submits that
the Board’s veiled credibility findings affected its overall assessment of the
country conditions. He argues that the Board failed to consider the current
country conditions from his own perspective when it erroneously concluded that
he would not be targeted by the army and the EPDP.
[16]
Mr.
Nadarajah further alleges that the Board erred in determining that he faced a
generalized risk in Sri Lanka. He underlines that his ethnicity is clearly
related to his fear as a young Tamil male targeted by the Sri Lankan authority.
B.
Respondent’s
submissions
[17]
The
Board’s determination on credibility was reasonable as it relied on the
evidence adduced by Mr. Nadarajah. The Board found that Mr. Nadarajah was not
targeted by the Sri Lankan authority as he was arrested in 2006 and released on
the same day without payment of a bribe or further interrogation.
[18]
The
Respondent underlines the importance of reading the decision in its entirety.
[19]
The
Respondent disputes Mr. Nadarajah’s allegation that in its assessment of the
evidence, the Board did rely on specialized knowledge regarding exiting procedures
applied by Sri Lankan authorities without providing proper notice.
[20]
The
Respondent argues that if indeed the Board’s findings in that respect were
unreasonable, it did not result in a breach of procedural fairness. Any breach
of procedural fairness was not material to the decision and does not
necessitate a new hearing. The Respondent relies on the case of Mobil Oil
Ltd et al v Canada Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202,
111 DLR (4th) 1 at paras 51-54 [Mobil Oil], where the Supreme
Court of Canada specified that a breach of procedural fairness does not vitiate
a decision where the results would have been the same.
[21]
The
Board’s determination of Mr. Nadarajah’s allegations is reasonable, according
to the Respondent, as the Board did not believe he had a well-founded fear of
persecution. The Respondent also underlines that Mr. Nadarajah failed to
establish the subjective component of his well-founded fear.
[22]
The
Respondent explains that a Convention refugee status depends upon the
circumstances in the given state at the time of the hearing. In the present
case, the Board diligently examined the objective evidence and concluded that
the country conditions in Sri Lanka are such that Mr.
Nadarajah would not be persecuted on Convention grounds or harmed.
[23]
Finally,
the Respondent submits that the Board’s finding on generalized risk is
reasonable.
VI. Analysis
1. Did
the Board breach its duty of procedural fairness by failing to inform Mr.
Nadarajah that it would take notice of facts regarding the security procedures
at the airport of Katunayake?
[24]
Mr.
Nadarajah alleges that the Board failed to provide sufficient notice that it
would rely on its specialized knowledge under subsection 170(i) of the IRPA
and rule 18 of the Refugee Protection Division Rules, SOR/2002-228.
The Board assumed that Mr. Nadarajah would have been arrested at the Katunayake
airport if he truly was targeted by the Sri Lankan authorities.
[25]
The
Respondent maintains that the Board did not base its conclusion on acquired
knowledge but made a reasonable inference.
[26]
The
Court finds that the Board did breach its duty of procedural fairness and
relied on specialized knowledge while assessing Mr. Nadarajah’s allegations.
[27]
As
the Court reviews both the transcript of the hearing and the Country
documentation report that according to Respondent’s counsel support her
position that the Board did not rely on specialized knowledge, this Court comes
to the opposite conclusion.
[28]
One
of the Board’s key finding was to the effect that Mr. Nadarajah was not sought
by the authorities because he was able to leave the country without any
encumbrance. It writes in paragraphs 9 and 10 of its decision, as one of the
fundamental findings underlying its determination on credibility.
[9] When finally he left the country
through Colombo International Airport in Katunayake, he was able to get
through the airport security officials without any difficulty despite his agent
having to show them his papers and plane ticket.
[10] Based on these, the Panel,
therefore, believes and finds that he was not or is not a person of interest to
the SLA or the government.
[29]
Mr.
Nadarajah testified and stated the following:
MEMBER: So what passport did you
use to get out of the country?
CLAIMANT: Canadian passport.
MEMBER: Canadian passport?
CLAIMANT: Yes.
MEMBER: So that Canadian passport
did not belong to you?
CLAIMANT: That is right.
MEMBER: And when you went through
the … did you go through the Katunayake airport?
CLAIMANT: Yes.
MEMBER: Did you have any trouble
going through the airport security and CID?
CLAIMANT: The agent who accompanied me
to the passport … to the airport he spoke with the others and they allowed me
to go.
MEMBER: But the airport security
and CID examine your identification papers, like your national identity card
and birth certificate and so on?
CLAIMANT: They only saw the passport.
MEMBER: What countries did you go
after you left Sri
Lanka?
CLAIMANT: Singapore, Japan, New York America in the States.
(see Tribunal Record at pages 280 and
281)
[30]
It is
clear that he did not show his identification papers but a false Canadian
passport.
[31]
Counsel
for the Respondent alleges that the Board relied on the country documentation
report rather than its specialized knowledge. It suggested that the footnote to
that paragraph justifies the Board’s finding that Mr. Nadarajah’s claim lacks
credibility since he was able to leave Sri Lanka despite his agent having to show his papers.
[32]
Paragraph
52 of the decision where the Board canvasses the current situation in Sri Lanka states “Exit and entry
into the country through the airport is strictly controlled and the traveler is
required to undergo numerous checks. Those leaving or entering and are wanted
for criminal offences would face additional questioning. However these
procedures were relaxed in 2010 and the main purpose of the authorities is to
check on people with criminal records and those with outstanding warrants.” The
footnotes to that paragraph refer to Exhibit R/A-1, #2.7, U.K. Home Office, 11
November 2010, Country of Origin Information Report: Sri Lanka, paragraphs 33.01 to
33.09 (see certified Court Record, pages 162 to 165).
[33]
In
reviewing these paragraphs, the Court concludes they do not support the Board’s
finding.
[34]
Hence,
Mr. Nadarajah is correct in alleging that the Board relied on its specialized
knowledge and failed to properly notify him.
[35]
Is
this breach of procedural fairness severe enough to warrant allowing the
application for judicial review?
[36]
In
the present case the Board took notice of facts that were obviously not on the
record. Mr. Nadarajah was not afforded the opportunity to make submissions
regarding the fact that he supposedly was able to leave the country by showing
“his papers”. That finding was made in error and contrary to the evidence on
file.
[37]
The
Respondent directed the Court to the Supreme Court’s decision in Mobil Oil cited
above, for the proposition that a breach of natural justice should not always
vitiate a decision if the outcome would have been the same regardless of that
breach.
[38]
Counsel
also relied on Yassine v Canada (Minister of Employment and Immigration) (1994), 172 NR 308
(FCA) at paras 9 and 11). The Court believes that the facts in the present case
lean more to the reasoning adopted by our colleague J. Tremblay-Lamer in N’Sungani
cited above, at para.32:
“In
my view, the principal established in Yassine, supra stands with a caveat taken
from Hu, supra; provided credibility determinations were properly arrived at,
and wholly determinative of the application, then the Mobil Oil, supra
exception can be invoked to deny a new hearing, assuming there is no reason to
suspect that the specialized knowledge in dispute in any was shaped the Board’s
credibility findings.”
[39]
The
Court finds this error to be determinative since it was material to the Board’s
decision. The Board failed to notify Mr. Nadarajah pursuant to article 170 of
the IRPA and rule 18 of the Refugee Protection Division Rules. This failure
constitutes a breach of natural justice.
[40]
For
this reason, the application is allowed.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
This
application for judicial review is allowed; and
2.
There
is no question of general importance to certify.
"André
F.J. Scott"
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