Docket: IMM-6826-10
Citation: 2011 FC 955
Ottawa, Ontario, July 28, 2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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KOBIKRISHNA KANAGASINGAM
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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 ORDER AND ORDER
[1]
Mr.
Kanagasingam is a young Tamil male from northern Sri Lanka. He came to Canada in order to
claim refugee status, based on race, imputed political opinion and membership
in a particular social group. He fears the Sri Lankan Security Forces and all
military and paramilitary groups working with and cooperating with them.
[2]
The
member of the Refugee Protection Division (RPD) of the Immigration and Refugee
Board of Canada (IRB), who heard his claim, dismissed it on four grounds:
a. he has not
shown that he has been targeted as an individual of special interest or of any
interest to the Sri Lankan military or police;
b. he has not
shown a subjective fear of persecution as his lengthy journey to Canada included
stopovers in four countries, including the United States;
c. following the
defeat of the LTTE (Tamil Tigers), and given the improving security situation
in the north of Sri Lanka, he should not be viewed as facing a serious risk of
persecution, as might have been in the past; and
d. even if it
were inadvisable to return to the north of Sri Lanka, he has an internal flight
alternative in Colombo.
This is the judicial review of that
decision. It is not necessary to determine if all four grounds are reasonable.
Any one will do.
The Facts
[3]
Mr.
Kanagasingam was a teacher of computer technology. He hails from Jaffna in the
north. He first came to the attention of the military in February 2007
following a bomb explosion. He was arrested along with several other young
Tamil men, but he was released two days later after being interrogated, slapped
and pushed.
[4]
The
second incident in September 2007 consisted of a roundup of young Tamil men. He
was questioned and assaulted, but released the next day.
[5]
In
June 2008, he was arrested at his home and accused of being involved with the
Tamil Tigers. He was turned over to the Eelam People’s Democratic Party (EPDP)
military group who beat him but released him two days later on payment of a
bribe. He was also told to leave the area.
[6]
Indeed
he did. He fled to Colombo. He was arrested by Sri Lankan police in
January 2009 and released upon payment of another bribe. Two months later he
left Sri
Lanka
and after a journey of six months arrived in Canada.
[7]
It
is to be noted that the member found that in general Mr. Kanagasingam was
credible, although he was vague on details of some of the events, examples of
which were given.
Standard of Review
[8]
The
only issue in this case is whether the member’s decision was reasonable (Dunsmuir
v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190). In Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, Mr. Justice
Binnie, at paragraph 52, repeated the caution stated in Dunsmuir that:
Dunsmuir states that “[c]ourts, while exercising
their constitutional functions of judicial review, must be sensitive not only
to the need to uphold the rule of law, but also to the necessity of avoiding
undue interference with the discharge of administrative functions in respect of
the matters delegated to administrative bodies by Parliament and legislatures”
(para. 27).
[9]
He
continued at paragraphs 59 and 60:
[59] Reasonableness is a single standard that takes its colour from
the context. One of the objectives of Dunsmuir was to liberate
judicial review courts from what came to be seen as undue complexity and
formalism. Where the reasonableness standard applies, it requires
deference. Reviewing courts cannot substitute their own appreciation of
the appropriate solution, but must rather determine if the outcome falls within
“a range of possible, acceptable outcomes which are defensible in respect of
the facts and law” (Dunsmuir, at para. 47). There might be more
than one reasonable outcome. However, as long as the process and the
outcome fit comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome.
[60] In my view, having in mind the considerable deference owed to
the IAD and the broad scope of discretion conferred by the IRPA, there
was no basis for the Federal Court of Appeal to interfere with the IAD decision
to refuse special relief in this case.
Discussion
[10]
Counsel
for Mr. Kanagasingam submits that it was not necessary for the applicant to
show that he had been targeted as an individual of special interest, or indeed
of any interest at all, to the authorities. He relies upon the decision of the
Federal Court of Appeal in Salibian v Canada (Minister of
Employment and Immigration), [1990] 3 FC 250, [1990] FCJ No 454 (QL). That
case establishes that a refugee claimant does not have to show that he himself
had been persecuted or would be persecuted in the future, as long as
reprehensible acts were committed, or were likely to be committed, against members
of a group to which he belonged.
[11]
Although
this statement is undoubtedly true, in this case it was overridden by the
member’s specific finding that the events which Mr. Kanagasingam experienced in
Sri
Lanka
establish, on the balance of probabilities, that he was not and would not be
personally targeted.
[12]
The
member was of the view that the fact he was able to be bribed out of detention
suggests that Mr. Kanagasingam was not of interest to the security forces. It
may well be that it is not implausible that corrupt police officers might
release someone in exchange for a bribe, despite suspicions about the person,
and could subsequently re-arrest (Eledchumanasamy v Canada (MCI), 87
ACWS (3d) 533, [1999] FCJ No 378 (QL)). It is also quite possible that a series
of arrests can, in itself, constitute persecution. On the other hand, it is
possible that he was not of interest, and the bribes were just bribes.
[13]
While
it may well have been open for the member to think that Mr. Kanagasingam would
be at considerable risk were he to be returned to Sri Lanka, I am in
effect being asked to reweigh country conditions. In Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), 157 FTR 35, [1998] FCJ No 1425 (QL), Mr.
Justice Evans stated at paragraph 14:
It
is well established that section 18.1(4)(d) of the Federal Court Act
does not authorize the Court to substitute its view of the facts for that of
the Board, which has the benefit not only of seeing and hearing the witnesses,
but also of the expertise of its members in assessing evidence relating to
facts that are within their area of specialized expertise. In addition, and
more generally, considerations of the efficient allocation of decision-making
resources between administrative agencies and the courts strongly indicate that
the role to be played in fact-finding by the Court on an application for
judicial review should be merely residual. Thus, in order to attract judicial
intervention under section 18.1(4)(d), the applicant must satisfy the Court,
not only that the Board made a palpably erroneous finding of material fact, but
also that the finding was made "without regard to the evidence": see,
for example, Rajapakse v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 649 (F.C.T.D.); Sivasamboo v. Canada
(Minister of Employment and Immigration), [1995] 1 F.C. 741 (F.C.T.D.).
[14]
Other
words of wisdom are found in the decision of Lord Wright in Grant v
Australian Knitting Mills,Ltd., [1935] ALL ER Rep 209 (JCPC), [1935] UKPC
2, at pages 213-214:
This,
however, does not do justice either to the process of reasoning by way of
probable inference which has to do so much in human affairs or to the nature of
circumstantial evidence in law courts. Mathematical, or strict logical,
demonstration is generally impossible: juries are in practice told that they
must act on such reasonable balance of probabilities as would suffice to
determine a reasonable man to take a decision in the grave affairs of life.
Pieces of evidence, each by itself insufficient, may together constitute a
significant whole, and justify by their combined effect a conclusion....
[15]
I
must ask myself whether the member’s decision falls within the range of
reasonable outcomes (Dunsmuir, above, paragraph 47). In my opinion, it
does.
ORDER
THIS COURT
ORDERS that the application for judicial review is dismissed. There is
no serious question of general importance to certify.
“Sean Harrington”
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