Docket: IMM-5753-11
Citation: 2012 FC 338
Ottawa, Ontario, March 20,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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VARNAN PARAMANATHAN
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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
[1]
The
Applicant, Varnan Paramanathan, seeks judicial review of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board),
dated July 29, 2011. The Board found that he was not a Convention refugee
or person in need of protection within the meaning of sections 96 and 97 of the
Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).
I. Facts
[2]
The
Applicant is a Tamil male from Jaffna in the North of Sri Lanka. However, he
lived in Kotahena, Colombo for two years and two months before leaving the
country.
[3]
He
claimed that his family experienced harassment by the Liberation Tigers of
Tamil Eelam (LTTE) and then later by security forces. He described
several short detentions during which he was interrogated and beaten prior to
being released. The detentions occurred as follows:
• August
2007: After a LTTE ambush of the local army camp in Uduvil, he was detained
along with other Tamils and held for 5 days during which time he was beaten and
suffered injuries before his father negotiated his release
• July
2008: He was detained at the Omanthai checkpoint by the army when there to
assist his uncle but was released after three hours
• August
2008: While living with his aunt in Colombo, he was detained and
questioned for three days by CID (Criminal Investigation Division) agents
before a retired police officer interceded for his release
• April
2009: He was caught up in a police round up and held in Kotahena, Colombo with other
Tamils just prior to the end of the war, but his boss was able to have him
released after two days
• July
2010: He was taken by the army, CID and Karuna paramilitaries from his aunt’s
house in Kotahena, Colombo and detained for three days at the Petteh army
camp until a businessman hired by his aunt bribed police for his release
[4]
The
Applicant claims that an agent helped him to fly out of Sri Lanka on September
9, 2010.
II. Decision
Under Review
[5]
The
Board did not believe the Applicant’s fear of persecution to be well-founded or
that he faced a serious possibility of risk if he were to return to Sri Lanka. He was
released from all detentions, albeit with the occasional bribe. The Board
believed, on a balance of probabilities, that there was no warrant out for his
arrest or that he was not on the high security watch list of the government.
[6]
The
Board proceeded to analyze the change of circumstances in Sri Lanka. Having
reviewed often less than consistent information, the Board found that the
situation for Tamils in the country had improved significantly in the past two
years. The government was seen as reaching out to the Tamil community by
hiring more Tamils in the police and military. However, the Board acknowledged
the continued prevalence of discrimination against ethnic minorities,
specifically Tamils. Considering the totality of the evidence, the Board
determined that “the situation, while not perfect, is not such that the
Applicant would be persecuted due to any Convention ground or harmed pursuant
to section 97 of the IRPA.”
[7]
Finally,
the risk facing the Applicant of extortion by rogue members of the security
forces and Karuna paramilitaries was addressed. The Applicant expressed
concern that on returning from a Western country he would be perceived as a
potential wealthy target. The Board nonetheless concluded that any risk faced
by the Applicant would be a generalized and prevalent risk faced by his
sub-group and not captured by subsection 97(1)(b).
III. Issues
[8]
The
Applicant raises several issues that can be addressed as follows:
(a) Did the Board err by failing to
consider an additional Convention ground?
(b) Did
the Board err in the application of the legal test for assessing the
Applicant’s fear of persecution?
(c) Did the Board err by not
considering the cumulative effect of the Applicant’s detentions?
(d) Did the Board fail to consider
the threat posed to the Applicant by paramilitaries?
(e) Did the Board err in making its
credibility findings?
(f) Did the Board err in its
assessment of the change of circumstances in Sri Lanka?
(g) Did
the Board err by making misstatements?
IV. Standard
of Review
[9]
The
majority of these issues require the reasonableness standard as matters of fact
or mixed fact and law (see Dunsmuir v New Brunswick, 2008 SCC 9,
[2009] 1 S.C.R. 190 at para 51).
[10]
In
applying that standard, the Court must have regard for “the existence of
justification, transparency and intelligibility” as well as “whether the
decision falls within the range of possible, acceptable outcomes defensible in
respect of the facts and law” (Dunsmuir, above at para 47).
[11]
The
application of a legal test is, however, a matter of law that must be reviewed
based on correctness (see Dunsmuir, above at para 50; Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1
SCR 339 at para 44).
V. Analysis
A. Failure
to Consider Convention Ground
[12]
The
Applicant submits that the Board erred in failing to consider whether he would
be targeted as a member of the particular social group of failed refugee
claimants. During the hearing, counsel made submissions and presented two
articles in support of this position.
[13]
The
Respondent maintains that this did not amount to an error as the Applicant’s
Personal Information Form (PIF) stated he feared persecution by “security
forces and henchmen”, not as a failed refugee claimant. This latter argument
was not central to his claim. Moreover, the preponderance of evidence
submitted was in relation to the situation facing Tamils in Sri Lanka. At least
of one of the articles on the issue of risks for returning failed asylum
seekers described a situation that could be distinguished from that facing the
Applicant.
[14]
Reviewing
the relevant jurisprudence, I recognize that this Court has overturned immigration
decisions for a failure to consider an additional ground of persecution. In Ghirmatsion v
Canada (Minister of Citizenship and Immigration), 2011 FC 519, [2011] FCJ
no 650 at para 106, for example, Justice Judith Snider suggested that while it
was open to a visa officer to consider an additional ground of persecution and
reject it; the failure to provide an explanation for not assessing that risk
amounted to a reviewable error.
[15]
The
Court has nonetheless stressed that the Board is only required to consider an
additional ground of persecution where there is evidence on the record to
support it (see Galyana v Canada (Minister of Citizenship and Immigration),
2011 FC 254, [2011] FCJ no 305 at paras 9-11; Casteneda v Canada (Minister
of Citizenship and Immigration), 2011 FC 1012, [2011] FCJ no 1253 at para
19).
[16]
More
specifically, Justice Snider accepted in Mersini v Canada (Minister of
Citizenship and Immigration), 2004 FC 1088, [2004] FCJ no 1364 at para 8
that while ignoring part of a refugee claim would ordinarily be a serious
error, this was not the case where membership in the particular social group
was not central to the claim and appeared “to be an afterthought that was not
supported by any evidence.”
[17]
In
light of these determinations, I am prepared to accept the Respondent’s
position that the failure to expressly consider the Applicant’s additional
ground of persecution as a failed refugee claimant is not an error warranting
the Court’s intervention.
[18]
Similar
to Mersini, above, the issue represents an afterthought as opposed to
the central basis of his claim. Indeed, the Applicant’s allegations focused on
treatment he experienced as a Tamil in Sri Lanka. The
evidentiary record and the Applicant’s testimony reflect this preoccupation.
The Board ultimately concluded that there was less than a serious chance of
persecution on “any Convention ground.”
[19]
While
Applicant’s counsel provided two articles as evidence of the risk to failed
asylum seekers, these were limited in comparison with the material devoted to
the central aspect of his claim and insufficient to establish a clear
obligation for the Board to address the issue. As the Respondent stresses,
“the legal duty or onus remains on a claimant to make out his or her claim in
clear and unmistakeable terms” (see Khan v Canada (Minister of Citizenship
and Immigration), 2006 FC 1183, [2006] FCJ no 1481 at para 18; Ranganathan
v Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164,
[2000] FCJ no 2118 at paras 10-11). In addition, Justice Russel Zinn in Galyana,
above, noted that the Board is not under an obligation to “undertake a
microscopic examination of the record before it to try to uncover a risk.”
B. Legal
Test for Assessing Persecution
[20]
The
Applicant takes issue with the Board’s characterization of the test for
assessing persecution at paragraph 52 of its reasons that “the situation, while
not perfect, is not such that the claimant will be persecuted due to any
Convention ground or harmed pursuant to section 97 of the Act.”
[21]
According
to the Applicant, the test lies somewhere between the balance of probabilities
(or more likely than not) and more than a mere possibility of persecution (see Adjei
v Canada (Minister of
Employment and Immigration), [1989] 2 FC 680, [1989] FCJ no 67 (FCA)). Elaborating
on this distinction, the Supreme Court of Canada stated in Chan
v Canada (Minister of
Employment and Immigration), [1995] 3 S.C.R. 593, [1995] SCJ no 78 at para
120:
[120] Both the existence of the
subjective fear and the fact that the fear is objectively well-founded must be
established on a balance of probabilities. In the specific context of refugee
determination, it has been established by the Federal Court of Appeal in Adjei
v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680, that
the claimant need not prove that persecution would be more likely than not in
order to meet the objective portion of the test. The claimant must establish,
however, that there is more than a "mere possibility" of persecution.
The applicable test has been expressed as a "reasonable possibility"
or, more appropriately in my view, as a "serious possibility". See: R.
v. Secretary of State for the Home Department, ex parte Sivakumaran, [1988]
1 All E.R. 193 (H.L.).
[22]
The
Respondent acknowledges that the Board misstated the test in paragraph 52 but
contends that the test was applied correctly elsewhere in the decision and the
Applicant failed to satisfy it.
[23]
I
agree with the Respondent’s assessment. While the Board implied a higher
threshold than that articulated in Adjei, above, it is not fatal as it
is evident from the remainder of the decision that the Board appreciated the
correct test to be applied. At paragraph 10 of its reasons, the Board did “not
believe his fear to be well-founded or that he faces a serious possibility of
risk if he were to return to his country of origin.” Similarly, the Board
states at paragraph 20 that “[b]ased on a thorough review of often less than
consistent information, the Panel finds, on a balance of probabilities, that the
situation for Tamils in the country has improved significantly over the past
two years and there is less than a serious chance of persecution and it is less
than likely that the claimant will be harmed pursuant to section 97 of the
IRPA.”
[24]
Admittedly,
the Board could have been clearer in its choice of wording. The statements
referred to do not suggest, however, that an inappropriately high threshold was
ultimately applied. The Board simply concluded that the Applicant had not
established subjective or objective fear of persecution in accordance with the
relevant tests.
C. Cumulative
Persecution
[25]
The
Applicant also raises a concern that the Board failed to consider whether the
incidents of detention cumulatively amounted to persecution. Specifically, he
argues that the Board failed to come to grips with whether there is more than a
mere possibility that he would be detained, as he was several times in the
past, because he is a young Tamil male from the North or the risk of
discriminatory measures. The Applicant points to evidence of continued
security detentions being applied in a discriminatory fashion as well as the
Board’s acknowledgment of beatings and torture in the course of interrogation.
[26]
In
Munderere v Canada (Minister of
Citizenship and Immigration), 2008 FCA 84, [2008] FCJ no 395 at para
42, the Federal Court of Appeal emphasized:
[42] […] the Board is duty bound to
consider all of the events which may have an impact on a claimant’s claim that
he or she has a well founded fear of persecution, including those events,
which, if taken individually, do not amount to persecution, but if taken
together, may justify a claim to a well founded fear of persecution. […]
[27]
The
Board is required to consider the cumulative nature of the incidents and
whether they amount to persecution. In my view, the Board met that requirement
in the present case.
[28]
From
the outset, it was noted that the Applicant’s claim was based on harassment by
the LTTE and later security forces. It involved “several detentions during which
he was interrogated and beaten, but was at all times released.” The Board
later noted that “[t]he fact he was released in all cases, albeit with the
occasional bribes, leads the Panel, to believe” that his fear was not
well-founded. This demonstrates that the Board considered the evidence as to
the significance of the detentions as a whole. Indeed, the claim was itself
based on the combined effect of the detentions as no single incident was
determinative.
[29]
I
also recognize the finding in Fernandopulle v Canada (Minister of
Citizenship and Immigration), 2005 FCA 91, [2005] FCJ no 412 at para
25:
[…] Proof of past persecution
for one of the listed reasons may support a finding of fact that the claimant
has a well-founded fear of persecution in the future, but it will not
necessarily do so. If, for example, there is evidence that country conditions
have changed since the persecution occurred, that evidence must be evaluated to
determine whether the fear remains well founded.
[30]
While
the Applicant refers to incidents of past detentions, based on the
determination in Fernandopulle, above, these are not necessarily
determinative of the persecution analysis. The Board reasonably considered the
Applicant’s experiences and inconsistent evidence of changed country
circumstances before concluding that he had “a less than serious chance of persecution”
based on ethnicity.
[31]
The
Applicant has not demonstrated a clear error by the Board in considering the
cumulative effect of the incidents of detention as amounting to persecution.
D. Threat
of Paramilitaries
[32]
The
Applicant faults the Board for failing to address the paramilitaries’ threat
that they would tell Sri Lankan authorities he was a LTTE member.
[33]
I
note, however, that the Board directed its attention to the threat of extortion
by paramilitary groups in the section devoted to generalized risk. While there
was a risk to the Applicant as an individual returning from abroad and
perceived to be wealthy, it was prevalent within this subgroup.
[34]
This
conclusion was reasonable. The Applicant has not pointed to any specific
evidence before the Board of additional threats posed by paramilitary groups so
as to undermine the characterization of this issue as one of a generalized risk
of extortion.
E. Credibility
Findings
[35]
The
Applicant takes issue with the Board’s finding that he was not the subject of a
warrant because he was eventually released after each detention and was able to
leave Sri
Lanka
via the airport. He notes that the Applicant did not say that he was the subject
of a warrant.
[36]
I
must agree with the Respondent that this does not lead to the conclusion that
the Board’s credibility findings were unreasonable. The Board simply inferred
that since the Applicant had been released in the past and was not arrested on
leaving Sri
Lanka
at the airport that he would not have been on a high security watch list. It
never implied that the Applicant stated there was a warrant for his arrest. In
assessing the Applicant’s fear and risk there is nothing unreasonable about making
a deduction regarding an arrest warrant in this manner. It was within the
range of possible, acceptable outcomes.
[37]
The
Board has discretion to weigh the evidence and make findings regarding an
Applicant’s credibility. As long as this is done in “clear and unmistakable
terms” (Hilo v Canada (Minister of Employment and Immigration) (1991),
130 NR 236, [1991] FCJ no 228 at para 6), as was the case here, or without
regard for the evidence, it is difficult to identify a basis for the Court’s
intervention.
F. Change
of Circumstances
[38]
The
Applicant disputes the Board’s change of circumstances findings for references
to returning refugees when others remain in or are heading to India as well as
tourism to the North by Southern Sri Lankans that he considers irrelevant to
his claim.
[39]
I
agree with the Respondent, however, that he has not demonstrated the Board’s
conclusions were unreasonable. Based on the evidence, the Board was justified
in suggesting that signs of changed circumstances include the return of former
refugees to Sri
Lanka
and tourists entering the North, irrespective of whether they are Sri Lankans
from the South or foreigners. This is consistent with the Board’s role in
balancing and highlighting relevant evidence.
[40]
In
addition, the Applicant notes the Board does not acknowledge evidence that some
newly hired Tamil police officers are from the paramilitaries or the
International Committee for the Red Cross (ICRC) had its access to the North
withdrawn in 2009.
[41]
As
the Respondent makes clear, this does not demonstrate the Board ignored the
evidence. Unless the contrary is shown, the Board is “presumed to have weighed
and considered all of the evidence presented to it” (Florea v Canada
(Minister of Employment and Immigration), [1993] FCJ no 598). There
is no requirement to specifically mention every piece of evidence (Hassan v
Canada (Minister of Employment and Immigration) (1992), 147 NR 317, [1992]
FCJ no 946).
[42]
Moreover,
the Applicant’s primary issue with the Board’s assessment as to the change of
circumstances is the weight accorded to this evidence. The Board acknowledged
the continued discrimination of Tamils and beatings during interrogation. It
nonetheless found “[b]ased on a thorough review of often less than consistent
information” that the situation for Tamils had improved in the last two years. This
balanced assessment demonstrates justification, transparency and
intelligibility within the decision-making process.
G. Misstatements
[43]
Finally,
the Applicant asserts that the Board erred by making two misstatements in the
course of its reasons, while the Respondent insists these were not material to
his claim.
[44]
The
Board referred to the EPDP (Eelam People’s Democratic Party) as a splinter
group from the LTTE, but it is a separate political party. This distinction
did not in any way prejudice the Applicant, since he did not base his claim on
any particular issue involving the EPDP. This misstatement was made in the
course of reviewing general country conditions rather than analyzing specific
elements of the Applicant’s allegations.
[45]
Similarly,
the discussion of a “high security watch list” as opposed to the wording in
documentary evidence of an “alert list” does not affect the Board’s overall
assessment. As the Respondent points out, the central finding on this issue
was that he was released from detention on each occasion and had no problems
traveling through an international airport. This led to the conclusion that
his fear of persecution was not well-founded. The exact characterization of
the list is immaterial.
[46]
The
misstatements raised by the Applicant are minor in the broader context of his
claim and do not amount to a reviewable error.
VI. Conclusion
[47]
Despite
all of the issues raised by the Applicant, he has not demonstrated a basis for
the Court’s intervention. For this reason, his application is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed.
“ D.
G. Near ”
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