Date: 20111020
Docket: IMM-382-11
Citation: 2011 FC 1196
Ottawa, Ontario, October 20,
2011
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
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SATHAN THAMBIRAJAH
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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]
This
is an application for judicial review of a decision made by the Refugee
Protection Division of the Immigration and Refugee Board (the Board), dated
December 8, 2010, dismissing the applicant’s claim for refugee protection
pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA].
[2]
For
the reasons that follow the application is allowed.
I. Background
[3]
The
applicant is a young Tamil from Delft, a small island in the north
of Sri
Lanka.
He arrived in Canada in January 2010
and claimed protection upon his arrival. He based his claim for protection on
incidents that occurred during 2007 and 2009.
[4]
The
applicant recounts incidents that occurred in 2007 in Delft when he had
to pass through checkpoints between his home and his place of work. On
occasions he was harassed, stopped and questioned on suspicion of helping the
Liberation Tigers of Tamil Eelam (LTTE). On one occasion, he was slapped and
chased away. On another occasion, in March 2007, the applicant was “stopped in
the hot sun, slapped on the cheek and beaten with a cane” and detained for five
hours. The applicant’s siblings in Sri Lanka experienced similar
issues. In February 2008, the applicant was stopped by the Army and beaten. He
states that one of his friends was killed in March 2008, after which he decided
to leave Delft.
[5]
In
March 2008, the applicant moved to Vavuniya. On one occasion, he was kidnapped and
detained by the Eelam People’s Democratic Party (EPDP) and released only after his
father paid a bribe of 25,000 rupees. The applicant moved to Colombo in
February 2009, left Sri Lanka in the same month, and arrived in Canada in
January 2010, after passing through Malaysia, Thailand, India, Lebanon, Ecuador, Mexico and
the United
States.
He claimed refugee protection upon his arrival in Canada.
II.
Decision under review
[6]
The
Board found that the claimant was neither a convention refugee pursuant to
section 96 of the IRPA nor a person in need of protection pursuant to section
97(1) of the IRPA.
[7]
Despite
some concerns about the applicant’s testimony, the Board found the applicant,
on a balance of probabilities, credible.
[8]
The
Board made its assessment based on the following facts, outlined in its
decision:
- The Sri
Lanka
authorities, under serious threat from the LTTE established numerous
checkpoints to stop all persons crossing and to check their identity;
- In Delft, the
applicant, who worked three kilometres away from his home, had to pass
through a checkpoint to get to work;
- On
occasion, when he was late reaching a checkpoint, he was asked to explain
why he was late, and on one occasion he was asked if he helped the LTTE;
they slapped him on the face and then chased him away;
- On
another occasion, in March 2007, he was stopped, slapped on the cheek and
beaten with a cane; he was detained for about five hours.
- On one
occasion, while he lived in Vavuniya, he was detained by the EPDP, a
paramilitary group, and was released after is father paid a bribe of
25,000 rupees.
[9]
The
Board accepted that these incidents happened and could happen again should the applicant
return to Sri
Lanka.
The Board found that, based on the Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention and the 1967 Protocol
relating to the Status of Refugees (UNHCR handbook), it was not easy to
distinguish between harassment, discrimination and persecution. The Board found
that, in this case, the incidents did not amount to persecution and that, if
similar incidents occurred in the future, they would likely not amount to
persecution. The Board Member indicated that, while he accepted that young
Tamils were likely to receive harsh treatment, in some cases amounting to torture
or death on suspicion of being supporters of the LTTE, this was not the
situation of the claimant. The Board characterized the treatment received by
the applicant as follows:
[15] … He was stopped questioned,
inconvenienced and harassed. However such treatment considering the situation
in the country does not amount to persecution. The treatment he received was
not someone going about his business should receive yet it was not serious or
systemic enough or shock the conscious of people to be characterized as
persecution.
[10]
Based
on that reasoning, the Board concluded that the applicant was neither a
Convention refugee nor a person in need of protection.
[11]
At
paragraphs 17 and 18 of the decision, the Board carried on with an assessment
under subsection 97(1) of the IRPA. It stated the test applicable to establish
a risk of harm under subsection 97(1) of the IRPA and concluded the following:
[18] I find however, that the
evidence presented in support of your allegations does not establish a serious
possibility of persecution or a likelihood on a balance of probabilities of the
other harms alleged. The claimant was picked up by the EPDP and released after
they extorted his father for Rs.25,000. Extortion by the EPDP may happen again.
The claimant father’s holds a senior and respectable position in the
government. He is the “Divisional Secretary” for the Delft region. The claimant’s four brothers and
one sister continued to live and study in Jaffna without any problems except being
questioned at the checkpoints, as the claimant was albeit more vigorously on
one or two occasions. He has not persuaded me on evidence that it is more
likely than not that he would suffer harm pursuant to section 97 (i) [sic]
upon his return to Sri Lanka.
III. Issues
[12]
The
issues in this case can be defined as follows:
Did the Board
impose an elevated burden of proof when applying section 97(1) of the IRPA?
Did the Board
err in determining that the applicant was neither a Convention Refugee nor a
person in need of protection?
IV. Standard
of review
[13]
The
first issue should be reviewed on the standard of reasonableness. While a
question regarding the appropriate standard of proof may be construed as a
question of law, Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 [Dunsmuir] recognises that some questions of law may be decided
on the basis of reasonableness (at para 56). This is especially so when the
question of law is highly related to the tribunal’s area of expertise. I find
that the burden of proof with respect to refugee claims is exceedingly
intertwined with the expertise of the Board and, therefore, a review on this
issue warrants a standard of reasonableness.
[14]
The
second question involves the Board’s findings of fact. It is trite
law that in matters of assessment of evidence and credibility, the applicable
standard of review is that of reasonableness (Dunsmuir at para 53; Ndam
v. Canada (Minister of
Citizenship and Immigration), 2010 FC 513 at para 4 (available on
CanLII); Martinez v. Canada (Minister of
Citizenship and Immigration), 2009 FC 798 at para 7, (available on
CanLII)).
[15]
The
Court’s role when reviewing a decision against the standard of reasonableness is
defined in Dunsmuir, above, at paragraph 47:
.
. . A court conducting a review for reasonableness
inquires into the qualities that make a decision reasonable, referring both to
the process of articulating the reasons and to outcomes. In judicial review,
reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
V. Analysis
A. Did the
Board apply an elevated standard of proof regarding the risk of harm facing the
applicant if he was returned to Sri Lanka?
[16]
The
applicant argued that the Board applied the wrong test under subsection 97(1)
of the IRPA and required an elevated burden of proof on selected
elements of the applicant’s testimony. He contends that this constitutes a
misunderstanding of how to apply subsection 97(1) of the IRPA, and that in
cases where there is doubt about whether the officer misapplied or
misunderstood a burden of proof the Court must quash the decision.
[17]
It
is well established that the test is whether it is more likely than not that
the person would be subject to the risk in question (Li v Canada (Minister of
Citizenship and Immigration), 2005 FCA 1, [2005] 3 FCR 239.
[18]
The
Board’s decision is not a model of clarity but I consider, when taking the
reasons as a whole, that the Board did not put a heavier burden of proof on the
applicant. At the end of its reasoning, the Board stated “He has not persuaded
me on evidence that it is more likely than not that he would suffer harm
pursuant to section 97(i) [sic] upon his return to Sri Lanka.” I find
that the Board expressed the “gist” of the appropriate standard of proof.
B. Did the
Board err in determining that the applicant was neither a Convention Refugee
nor a person in need of protection?
[19]
The
applicant argued that the Board erred in finding that being stopped and beaten
by soldiers because you are a young Tamil male is not persecutory and is not
harm, as defined in subsection 97(1) of the IRPA. The applicant contended that
arbitrary detention motivated by the person’s ethnicity is persecutory and
cannot be justified by a state of emergency. The applicant further contended
that the Board erred in ignoring that the cumulative effect of the incidents amounted
to persecution. He also argued that the Board erred in considering whether
mistreatment would “shock the conscience of people to be characterized as
persecution” because this is not a relevant consideration in law.
[20]
In
his Further Memorandum of Argument, the applicant raised a new argument. He
contended that the Board failed to consider that he would face persecution on
grounds of membership in a particular social group, that group being failed
refugee claimants.
[21]
The
respondent argued that the applicant should not be allowed to raise this new
argument this late in the process. The respondent contended that the Court has
consistently declined to hear new arguments raised for the first time at the Further
Memorandum stage (Garcia v Canada (Minister of Citizenship
and Immigration), 2006 FC 645 at paras 15-17, 149 ACWS (3d) 300) and
contended that it was prejudiced because it did not have the opportunity to
counter the argument.
[22]
The
Court is allowed to exercise its discretion and hear new issues based on the
following considerations taken from Al Mansuri v Canada (Minister of
Public Safety and Emergency Preparedness), 2007 FC 22 at para 12,
314 FTR 1:
(i) Were all of the
facts and matters relevant to the new issue or issues known (or available with
reasonable diligence) at the time the application for leave was filed and/or
perfected?
(ii) Is there any
suggestion of prejudice to the opposing party if the new issues are considered?
(iii) Does the record
disclose all of the facts relevant to the new issues?
(iv) Are the new issues
related to those in respect of which leave was granted?
(v) What is the apparent strength
of the new issue or issues?
(vi) Will allowing new
issues to be raised unduly delay the hearing of the application?
[23]
I
agree with the respondent. In this case, the facts and matters relevant to the
new issue were known at the time the applicant perfected his application for
leave and could have been raised on a timely basis. The applicant is in the
position to know the issues and raise them. The respondent rightly contends
that it is prejudiced by not having an opportunity to submit evidence on this
possible serious issue.
[24]
On
the merits of the application, the respondent alleged that the applicant is
asking the Court to reweigh the facts and evidence. The applicant failed to
establish that the decision is unreasonable and warrants the Court’s intervention.
The respondent insisted that the Board acknowledged that the applicant
experienced the incidents he described in his testimony but found that they did
not amount to persecution; while it may be difficult to draw the line between
discrimination and persecution, it is within the Board’s mandate, and part of
its duty, to draw conclusions based on facts by analyzing the evidence submitted,
including about what constitutes persecution. This Court ought not to intervene
unless the findings are capricious or unreasonable.
[25]
The
respondent also contends that all claims made for asylum should be considered
on their individual merits in a fair and efficient way, taking in to account
the up-to-date situation in their country of origin. The test for refugee
status is prospective. The respondent relied on Hettige v Canada (Minister
of Citizenship and Immigration), 2010 FC 849 at paras 22 to 23 (available
on CanLII) where this Court decided that it was reasonable for the Board
to conclude that the claimant no longer faced a threat because circumstances have
changed in Sri Lanka since May 2009.
[26]
Despite
the deference owed to the Board, I consider that its decision is unreasonable.
[27]
I
find that the Board unduly minimized the treatment imposed on the applicant.
The Board found that the claimant was “stopped, questioned, inconvenience and
harassed”. It also found that he was questioned “more vigorously” than his
siblings at checkpoints. With all due respect, I do not see how being beaten,
detained or made to pay a bribe to a paramilitary group to be released can be
considered as being merely inconvenienced or as being vigorously questioned. I
further find that the diluted way in which the Board characterized the
treatment received by the applicant coloured the remaining of its reasoning and
rendered the outcome unreasonable.
[28]
Moreover,
the Board acknowledged that the treatment imposed on the applicant stemmed from
him being a young Tamil living in the northern portion of Sri Lanka and that it
could happen again if he was to return to Sri Lanka. Yet, it found
that the experience was not serious or systemic enough to be characterized as
persecution. The Board seems to minimize the gravity of the treatment received
by the applicant because of the situation that prevailed in Sri Lanka. The Board
explained that the Sri Lanka authorities were under a serious threat from
the LTTE and were justified in establishing checkpoints. The Sri Lankan state
may have had legitimate reasons to establish checkpoints but there can be no
legitimate reasons to harass, beat and detain citizens who have to cross those
checkpoints.
[29]
In
the same vein, the Board described the treatment received by the applicant as “not
shocking the conscious of people.” I consider that this was not a relevant
consideration.
[30]
Finally,
the Board acknowledged that the applicant may receive similar treatment if he
returns to Sri
Lanka
but concluded that such a situation would not amount to persecution. The basis for
this finding is not clear. The Board may have based its reasoning on its characterization
of the treatment received by the applicant in the past. If that is the case, it
failed to assess whether a repetition of the incidents could cumulate in
persecution. The respondent underscored the prospective nature of the risk and
the changes in the prevailing conditions in Sri Lanka since May
2009. However, it is worth noting that the Board did not refer to any change in
the country conditions and, on the contrary, acknowledged that the applicant
could face similar treatment if he were to return to Sri Lanka.
[31]
For
all of the above, the application for judicial review is allowed and the
Board’s decision will be overturned. No questions of general importance were
proposed for certification and none arise.
JUDGMENT
THIS COURT’S JUDGMENT
is that the
application for judicial review is allowed and the matter is sent back for
re-determination by a differently constituted panel.
“Marie-Josée
Bédard”
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