Docket: IMM-6895-10
Citation: 2011 FC 857
Ottawa, Ontario, July 12, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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ISURU PRASANNA
NANAYAKKARA-AGARAGE
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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
Board is entitled to make reasonable findings based on implausibilities, common
sense and rationality, and may reject evidence if it is not consistent with the
evidence when examined as a whole (Alizadeh v Canada (Minister of Employment
and Immigration), [1993] FCJ No 11 (QL/Lexis) (FCA); Aguebor v Canada
(Minister of Employment and Immigration), [1993] FCJ No 732 (QL/Lexis) (FCA);
Shahamati v Canada (Minister of Employment and Immigration), [1994] FCJ
No 415 (FCA)).
II. Introduction
[2]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (Board), rendered on October 29,
2010, wherein, the Applicant was found to be 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].
III. Facts
[3]
The
Applicant, Mr. Isuru Prasanna Nanayakkara-Agarage,
a citizen of Sri Lanka alleged his problem began when he lent his cell phone,
which was run on pre-paid cards, to a young Tamil who was a driver/cook for a
company he was working for, in Monaragala, Uva Province. The Tamil’s name was Shankar and they
spent approximately six weeks working together.
[4]
In
mid-October 2008, Shankar disappeared. On May 2, 2009, the Sri Lankan military
killed four Liberation Tigers of Tamil Eelam [LTTE] fighters in the Yala
Sanctuary, in the Hambantota District of the Southern Province, in proximity to
where the Applicant was working for the summer. The Applicant alleged that his
phone number was found in the possession of these “assassins”; and, on May 6,
2009, he was arrested by Sri Lanka’s Terrorist
Investigation Department [TID] and questioned on his relationship with Shankar.
The Applicant alleged he was also tortured. To the Applicant’s knowledge,
Shankar was in touch with people in “Ampara” (Eastern Province).
The Applicant stated that the police had mentioned to him that, in fact,
Shankar was communicating with LTTE “assassins”.
[5]
The
Applicant also alleged he was confronted with further accusations and, under
torture, was forced to sign a document.
[6]
The
Applicant claimed he was released the next day on payment of a large bribe. The
Applicant’s father then organized the Applicant’s flight from Sri Lanka and since that
time, the father has himself been visited by the police.
III. Issue
[7]
Is
the Board’s decision reasonable?
IV. Standard of Review
[8]
Questions
of facts or of mixed law and facts are reviewed under the standard of
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190).
V. Analysis
[9]
The
Federal Court will not substitute its discretion for that of the Board if it
was open to the Board to find as they did, even if the Court might have drawn
different inferences or found the evidence to be plausible. The Court clarified
the case law on this point in Aguebor, above:
[3] It is correct, as the Court said in Giron, that it may be
easier to have a finding of implausibility reviewed where it results from
inferences than to have a finding of non-credibility reviewed where it results
from the conduct of the witness and from inconsistencies in the testimony. The
Court did not, in saying this, exclude the issue of the plausibility of an
account from the Board's field of expertise, nor did it lay down a different
test for intervention depending on whether the issue is
"plausibility" or "credibility".
[4] There
is no longer any doubt that the Refugee Division, which is a specialized
tribunal, has complete jurisdiction to determine the plausibility of testimony:
who is in a better position than the Refugee Division to gauge the credibility
of an account and to draw the necessary inferences? As long as the inferences
drawn by the tribunal are not so unreasonable as to warrant our intervention,
its findings are not open to judicial review…
[10]
If
the story is true, then why would an individual who was contacting LTTE
assassins or persons associated with the “enemy” in the midst of a civil war
use someone else’s cell phone? In response, the Applicant stated that it was a
question of cost. Shankar could not afford to buy the phone but could
afford to pay for the minutes. The Board found this explanation to be inadequate.
If Shankar was communicating with the LTTE, which means he was at risk of being
uncovered, he would not likely use a phone number that could be traced back to
him, which would be the case with a borrowed phone from the son of his employer’s
friend.
[11]
The
fact that the Applicant was released from detention indicates that the
authorities did not seriously consider that he was an LTTE member nor that he
had any association with them.
[12]
The
Applicant alleged that the police and the TID were actively seeking him. At the
same time, the Applicant was able to secure a valid Canadian visitors permit
and a valid Sri Lankan passport and leave the country with a group of students,
one of whom was from his college, to attend a conference in Canada.
[13]
In
order to board the plane, the Applicant went through security which involved a
review of his identity documentation. The Board found it was impossible for the
Applicant to clear the airport while being sought by the TID.
[14]
According
to a UK Home office report:
…
All passengers must complete a departure card and then queue at an immigration
officer’s desk. Passengers must present their passport, departure card and
boarding pass to the immigration officer. The immigration officer will swipe
the passport onto the IED [Department of Immigration & Emigration] Border
Control System database… Having passed through the immigration control,
passengers proceed to the main departure lounge. There are further security
checks conducted when passengers arrive at the boarding gate… There is then a
further boarding card check conducted by airline staff prior to entering the
holding lounge.
(Exhibit A-3: National Documentation
Package on Sri Lanka, 13 August 2010, tab 2.7, United Kingdom (UK). 18 February
2010. Home Office. Country of Origin Information Report: Sri Lanka at para
33.03).
[15]
The
Board held that the plausibility of the Applicant’s story of his arrival in
Canada is also open to question. According to the Applicant, his participation
in the JAX Youth Leader’s Exchange Program in Hamilton, Ontario (August 2-14)
was simply a means of leaving Sri Lanka. The Board had grave concerns about the
Applicant’s description of his participation in this event and the assistance
by which his integration into the event was facilitated (at para 21). (The
question is open whether, in fact, any organization would want to jeopardize
its entity by including a non-participant in a program that could put into
peril the very organization’s existence, itself, both as a collective entity
and, furthermore, jeopardize each individual, him or herself, who as a member
of the entity could then be under scrutiny.)
VI. Conclusion
[16]
For
all of the above-reasons, the Applicant’s application for judicial review is
dismissed.
JUDGMENT
THIS COURT
ORDERS that the Applicant’s application for
judicial review be dismissed. No question for certification.
“Michel
M.J. Shore”
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