Date: 20070514
Docket: IMM-3814-06
Citation: 2007 FC 513
Ottawa, Ontario, May 14,
2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
UTHAYAKUMAR
SELVAM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the
decision of the Immigration and Refugee Board (Refugee Protection Division)
(the Board) dated June 12, 2006, which found that the applicant was neither a
Convention refugee nor a person in need of protection.
[2]
The
applicant requests that the decision be set aside and the matter referred for
redetermination by a differently constituted panel of the Board.
Background
[3]
The
applicant, Uthayakumar Selvam, is a Tamil citizen of Sri Lanka. He alleged
having a fear of persecution on the basis of his race, imputed political
opinion and membership in a particular social group, namely, young male Tamils
from northern Sri
Lanka.
He also claimed to be a person in need of protection. The circumstances leading
to the applicant’s claim for protection were set out in the narrative portion
of his Personal Information Form (PIF).
[4]
The
applicant lived in Kopay, which is located in the northern region of Sri Lanka. Kopay was
controlled by the Liberation Tigers of Tamil Eelam (the LTTE) during the 1990s.
The applicant’s family were subjected to extortion by the LTTE, and the
applicant and his father were forced to work for the movement. The family
eventually moved to Puthukudiyirupu, Mullaitivu, because they feared
mistreatment at the hands of the Sri Lankan army. However, the applicant and
his siblings were still pressured to join the LTTE. In October 2000, the
applicant went to live with his aunt in Colombo, in order to
attend private school and learn English.
[5]
He
was later arrested by the police after they checked an identity document, which
identified him as a resident of Mullaitivu. The applicant was detained for
three days and questioned about the LTTE. His aunt paid a large ransom in order
to secure his release. The applicant returned to Mullaitivu a week later, and
was again forced to work and subjected to extortion by the LTTE. In December
2004, the LTTE contacted the applicant and told him to join their movement. The
LTTE members indicated that the army was preparing for war and that the
movement needed youths to join them.
[6]
The
applicant did not want to join the LTTE and raised money in order to flee Sri Lanka. He left Colombo and arrived
in Dubai on February
13, 2005. The applicant left Dubai on February 15, 2005, and arrived in Toronto on February
20, 2005, where he immediately claimed refugee protection. The applicant’s
refugee hearing was held on April 20, 2006 and his claim was denied by decision
dated June 12, 2006. This is the judicial review of the Board’s decision.
Board’s Reasons
[7]
The
Board determined that the applicant’s claim was neither credible nor plausible,
and rejected his claim for protection as a Convention refugee and a person in
need of protection. The Board was mainly concerned with the applicant’s
inconsistent evidence regarding the alleged agents of persecution in Sri Lanka.
[8]
When
asked by immigration officials whom he feared in Sri Lanka, the
applicant answered: the LTTE and the army. His PIF indicated that he feared the
LTTE. The applicant testified that he feared the LTTE, the Sri Lankan Armed
Forces (SLAF), the police and several pro-Tamil groups (PLOTE, TELO, and EPDP).
However, the applicant’s evidence indicated that he had not had any contact
with these groups. The Board did not accept the applicant’s explanation that he
considered the police and the army to be the same agent. Inconsistencies
regarding whom he feared affected his credibility and were considered evidence
of embellishment.
[9]
The
only credible agent of persecution was the LTTE. The applicant claimed that in
December 2004, the LTTE told him to join them and train for battle. This was
allegedly the reason why he fled Sri Lanka for Canada. The Board
questioned why he left in 2004, since the war had been over for two years. He
had evaded the LTTE during the entire war and could not explain why he chose to
flee in 2004. The applicant lacked credibility and had not demonstrated a
well-founded fear of persecution in Sri Lanka. In addition, his
behaviour was not consistent with that of a person fleeing persecution.
[10]
The
Board then addressed the issue of an internal flight alternative (IFA). The
applicant’s family lived in Kopay, which was under the control of SLAF, and his
aunt lived in Colombo. The
applicant claimed that he could not relocate because he had always lived in his
village and did not want to leave. The Board did not accept this explanation.
The applicant mentioned his arrest in Colombo, yet documentary
evidence showed that the situation had changed since 2000. The Board found that
search operations and travel restrictions upon northern Tamils had ended in
2002. The Board determined that the applicant could resettle in these areas, as
they were not under LTTE control.
[11]
The
Board noted evidence that the LTTE travelled throughout Sri Lanka, which made
it difficult for Tamils seeking refuge. However, the applicant could rely upon
his family, therefore this was not relevant to his case. The Board did not
believe that the LTTE would search Colombo or Kopay for the
applicant, and found that he had an IFA in either of these areas.
Issues
[12]
The
issues are as follows:
1. Did the Board err in
finding that the applicant lacked credibility?
2. Did the Board err in relation
to its IFA finding?
Applicant’s Submissions
[13]
The
applicant submitted that the Board erred in finding that he had a viable IFA. It
was submitted that the issue to be determined was whether there was a serious
chance of persecution in the IFA, and whether it was unreasonable for the
applicant to reside in the new location (see Thirunavukkarasu v. Canada
(Minister of Employment and Immigration), [1994] 1 F.C. 589, (1993) 22 Imm.
L. R. (2d) 241 (C.A.)).
[14]
The
applicant submitted that the Board erred in finding that family members could
protect a person from the LTTE. The applicant testified that he was in hiding
while living with his aunt in Colombo. It was submitted that
a location is not an IFA if a person has to remain in hiding (see Kaschine
v. Canada (Minister of
Citizenship and Immigration) (1995), 55 A.C.W.S. (3d) 1007 (F.C.T.D.)).
The applicant submitted that a large urban area was not necessarily an IFA (see
Reynoso v. Canada (Minister of
Citizenship and Immigration) (1996), 107 F.T.R. 220, 60 A.C.W.S. (3d)
1214 (F.C.T.D.)). It was submitted that the Board erred in finding that Kopay
was an IFA, as there was no evidence that he could get there without passing
through LTTE lines. The applicant noted documentary evidence indicating that
there were still search arrests operations affecting Tamils in Colombo.
[15]
The
applicant submitted that the Board erred in failing to consider his fear of the
police. The applicant noted evidence that torture was used by the police with
impunity. The Board did not contest that the applicant was arrested and
detained by the police in 2000, nor did it find that he did not fear the
police. It was submitted that the Board had an obligation to identify the agents
of persecution (see Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689,
(1993)
103 D.L.R. (4th) 1). The applicant submitted that his understanding that the
police and the army were the same agent was reasonable, since both were
controlled by the Sri Lankan government. The applicant testified that he
considered them to be similar because they did the same things, not because
they were the same thing.
[16]
It
was submitted that the Board erred in finding that he had named agents of
persecution which had not caused him problems in the past. The applicant
submitted that refugee claimants did not have to have problems with agents of
persecution in the past in order to assert a fear of persecution (see Salibian
v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250,
(1990) 73 D.L.R. (4th) 551 (C.A.)). The applicant noted that past
persecution was not sufficient to found a claim for refugee status (see Sarmis
v. Canada (Minister of
Citizenship and Immigration) (2004), 245 F.T.R. 312, 2004 FC 110).
[17]
The
applicant submitted that the Board was overzealous in finding contradictions in
his evidence regarding the agents of persecution he feared. During the hearing,
the applicant was asked whom he feared in the future, should he return to Sri Lanka. He
therefore set out the agents of persecution that he would likely encounter upon
his return to Sri
Lanka.
[18]
The
applicant submitted that the Board erred in finding that he lacked credibility
because he feared recruitment for a war which post-dated the ceasefire. The
documentary evidence indicated that the LTTE was recruiting children. The
applicant had been forced to work and donate money to the LTTE, and described
his fear as cumulative in nature. The applicant submitted that the Board erred
in failing to consider whether the cumulative effects of his experience in Sri
Lanka constituted persecution (see Tolu v. Canada (Minister of
Citizenship and Immigration), (2002) 218 F.T.R. 205, 202 FCT 334).
[19]
The
applicant submitted that where a claim was based upon cumulative grounds, the
issue of delay in fleeing could not be raised (see Ibrahimov v. Canada (Minister of
Citizenship and Immigration) (2003), 32 Imm. L.R. (3d) 135, 2003 FC
1185). The applicant submitted that the Board failed to consider his cumulative
fear of persecution when determining whether an IFA existed in Sri Lanka. It was
submitted that the applicant’s experiences outside the IFA could form part of a
cumulative assessment when considering the existence of an IFA (see Balasubramaniam
v. Canada (Minister of
Citizenship and Immigration) (1996), 64 A.C.W.S. (3d) 660 (F.C.T.D.)).
Respondent’s Submissions
[20]
The
respondent submitted that the Board was entitled to find that the applicant
lacked credibility on the basis of contradictions and inconsistencies in his
story and the evidence (see Leung v. Canada (Minister of
Employment and Immigration) (1990), 74 D.L.R. (4th) 313, 129 N.R. 391
(F.C.A.)). It was submitted that the Board considered all of the evidence and
determined that the applicant was not credible. The respondent submitted that
the inconsistencies in identifying an agent of persecution undermined the
applicant’s claim. It was submitted that credibility findings based on problems
in a claimant’s testimony were within the discretion of the trier of fact, and
the Court should not interfere (see Aguebor v. Canada (Minister of
Employment and Immigration) (1993), 160 N.R. 315 , 42 A.C.W.S. (3d) 886
(F.C.A.)).
[21]
The
respondent submitted that standard of review applicable to an IFA finding was patent
unreasonableness, as the determination was factual in nature (see Pushpanathan
v. Canada (Minister of
Citizenship and Immigration), [1998] 1 S.C.R. 982, (1998), 160 D.L.R.
(4th) 193). It was submitted that the test to show than an IFA finding was unreasonable
was high, as the applicant had to show that his safety would be jeopardized.
The respondent submitted that based upon the evidence, the IFA finding was open
to the Board and the applicant had failed to demonstrate otherwise. The Board
was satisfied that there was no serious possibility of the applicant being
persecuted in Colombo, therefore
he could settle there.
[22]
The
respondent submitted that the Board addressed the applicant’s fear of the
police resulting from his detention. It was submitted that the Board considered
the evidence and changes in country conditions since the detainment, such as
the removal of travel restrictions. The respondent submitted that the applicant
did not demonstrate that he faced a risk in Colombo. It was
submitted that the Board was presumed to have considered and weighed all of the
evidence.
[23]
The
Board found it reasonable to expect the applicant to seek safety in Colombo before
seeking protection in Canada (see Thirunavukkarasu above). It
was submitted that persecution in a region was not persecution within the
meaning of the Convention if the government was capable of providing protection
elsewhere within its territory, and if it may be reasonably expected that
victims will move to a region of the country where they will be protected (see Zalzali
v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605,
(1991)126 N.R. 126 (C.A.)).
[24]
The
respondent submitted that the applicant did not discharge the onus of proof to
show that it was unreasonable for him to seek an IFA (see Thirunavukkarasu above).
It was submitted that the applicant failed to show that the Board ignored or
misconstrued evidence, misunderstood the legal test, or made perverse findings
in this regard.
Applicant’s Reply
[25]
The
applicant cited Iruthayanathar v. Canada (Minister of Citizenship and
Immigration) (2000), 98 A.C.W.S. (3d) 884 (F.C.T.D.), in support of the
proposition that if a Tamil claimant faced a risk in Colombo, he or she
might be determined a Convention refugee, given the impossibility of avoiding Colombo before
travelling to other parts of the country.
Analysis and Decision
Standard of Review
[26]
It
is well established that the Board’s credibility findings are entitled to a
high level of deference and are subject to review on the standard of patent
unreasonableness (see Aguebor above). The Board’s finding of an internal
flight alternative is also reviewable on the standard of patent
unreasonableness (see Cantarero v. Canada (Minister of
Citizenship and Immigration) (2005), 139 A.C.W.S. (3d) 539, 2005 FC
649).
[27]
Issue 1
Did the Board
err in finding that the applicant lacked credibility?
The Board determined that the
applicant lacked credibility due to inconsistencies in his evidence regarding
the agents of persecution he feared in Sri Lanka. Immigration
officials asked the applicant whom he feared in Sri Lanka, and the
notes taken indicate that he answered “both army and LTTE.” The Board’s reasons
state that in “the claimant’s PIF, it appears clearly that the LTTE is an agent
of persecution, but there is no other indication of any other person or group
the claimant would be afraid of.” I would note that the applicant’s PIF
narrative states that he feared “the army, the police and the LTTE”. The
following exchange took place during the refugee hearing:
BY PRESIDING MEMBER (to person concerned)
…
Q. I understand that, sir. That’s
why I don’t understand why you’re afraid of these people?
A. That is I cannot live in any
parts of Sri
Lanka. The
question is why are you afraid of these groups. In future I cannot live in any,
I cannot live in an area controlled by the army, sorry, by the Tigers, because
they had already given the last warning that if I had to stay in their area I
had to join them. So if I had to go back, I had to live in some other areas,
EDPD, PLOT, so the EDPD and the PLOT are pro-government group, they are
functioning against the LTTE. So if a young person like me enter an area like
that, they would consider me as a person who is against them. So they would
show their hatred. So using me they want to show their hatred.
…
Q. Outside of these groups that you
mentioned now, the EPDP, PLOT, TELO, Karuna is there any other, and the LTTE,
of course, is there any other group or organization that, or individuals that
you are afraid of in Sri Lanka?
A. Afraid of the police and the
army.
…
Q. So why are you afraid of the
police and the army?
A. I was arrested by the police,
and army and the police are functioning together now. So now I am afraid of
these people because I am young Tamil person. So they would torture me.
- Sir, when you first made your
refugee application and were interviewed by an immigration officer, and I’m
looking at A-2, the immigration officer interview notes, question 4, you said
that you were afraid of the … you wrote that you were afraid of the army and of
the LTTE. Now today you list a whole series of groups including the police that
are not mentioned in question 4.
A. So we consider the police, when
we tell police army also included in that because they work together.
- But there’s no mention of
TELO, PLOT, any of these other groups that you say you’re afraid of.
A. For this time I did not have
any contacts with them because I did not live in an area controlled by the
government.
- No, but sir, you say today
you are afraid of them. When you first arrived and made your refugee
application you only listed the LTTE and the army nobody else.
A. So here I was asked whether
there are any groups whom I might be afraid. Then only I thought of these
groups. In future I might be…they might be troublesome.
And at page
173 of the Tribunal record:
BY PRESIDING MEMBER (to person concerned)
…
Q. Sir, and did you ever have any
particular problems with the Sri Lankan Armed Forces yourself?
A. Police has arrested me.
- Okay,
but I’m asking you about the army, sir. I understand the police in
Colombo.
A. Even though the army did not
arrest me, people consider them very similar. Whatever the police do the army
also they do the same things.
Having reviewed the hearing transcript, it
is clear that the applicant expressed his fear of groups such as PLOTE and EPDP
as a result of the possibility of his return to Sri Lanka, not his
past experience in the country. I do not believe that the applicant’s statement
in this regard was a major inconsistency upon which to ground a negative
credibility finding.
[28]
The
main discrepancy with respect to the agents of persecution noted by the Board
was the applicant’s alleged fear of the army and the police:
Overall, the panel found a lack of
credibility and plausibility in the present claim. Chief among the panel’s
concern is the claimant’s inconsistent evidence on who were or are the agents
of persecution in Sri
Lanka.
…
… Neither did the claimant ever have a
problem or reason to fear the SLAF. With respect to the latter, the claimant
spoke about his detention in Colombo in 2000. Yet he was arrested
by the police. According to the claimant, the police and army are the same
thing. The panel does not accept the claimant’s explanations as credible. The
inconsistency on whom the claimant fears, in the panel’s mind, affects the
claimant’s credibility and is demonstrative of an individual engaging in
embellishment.
[29]
The
Board may consider inconsistencies in a claimant’s evidence in assessing his or
her credibility (see Leung above). The Board placed a particular
emphasis upon the applicant’s explanation that he considered the army and the
police to be the same entity. While the Board was entitled to reject the
applicant’s explanation, I do not believe that the resulting negative
credibility finding was appropriate. The applicant’s PIF narrative states that
he feared the police and had been arrested by them in 2000.
[30]
In
addition, the applicant’s PIF states that his family fled their home in 1995
due to the presence of the army. The applicant also testified that he
considered the police and the army to be similar, as they engaged in similar
activities. In my view the applicant did not provide inconsistent testimony
when he indicated that he feared the police and the army, since both of these
agents were named in his PIF. While it was open to the Board to question the
legitimacy of the applicant’s fear of the army, I believe that the Board erred
in basing its negative credibility finding upon the alleged inconsistency
regarding the agents of persecution.
[31]
The
Board found that the only credible agent of persecution was the LTTE. However,
the Board found that the timing of the applicant’s potential recruitment by the
LTTE, being two years after the ceasefire in Sri Lanka, lacked
credibility. At the hearing, the Board asked the applicant to explain this issue:
BY PRESIDING MEMBER (to person concerned)
Q. But somehow in December of 2004
when there hasn’t been a battle for at least at that point in time two and a
half years if not longer, you fear that they’re going to forcibly recruit you
to fight but there’s nothing to fight for at that point in time?
A. The Tigers have declared that
they were about to start the final war that is considered stage 4.
- Okay. No, but you can see,
sir, it doesn’t seem to make a lot of sense if while during the war years you
were able to avoid being forcibly recruited that you would be concerned about
being recruited during a time when there’s no fighting going on.
A. Even though there was peace for
some time, the Tigers made use of that period to strengthen their forces and get
prepared for the final war.
…
A. So the Tigers plan to get the
people, more and more people to participate in this kind of war to win their
war. So they told the people that it would be the final war, the last push so
everybody should contribute to this.
[32] The applicant
explained why the LTTE were forcibly recruiting him when the war was not going
on. He stated that the LTTE was preparing for the final war and planned to
recruit people for the final war or last push. The Board noted that the
applicant avoided recruitment when the war actually was going on. A review of
the transcript shows that the applicant avoided recruitment during the war by
working for the LTTE and paying them money.
[33]
In
my view, the Board committed a patently unreasonable error in refusing the
applicant’s claim on the basis of a lack of credibility.
[34]
Issue
2
Did the Board err in
relation to its IFA finding?
The Board determined that the
applicant had a viable internal flight alternative in areas of Sri Lanka which
the LTTE did not control, such as Kopay or Colombo. The
applicant submitted that the Board erred with respect to this finding, since it
failed to consider whether he faced a serious chance of persecution in these
locations, or whether it was reasonable for him to relocate to an IFA. The
respondent submitted that the applicant had a viable IFA, since the applicant
had failed to demonstrate that he would be at risk in these areas.
[35]
Justice
Layden-Stevenson cited the test for an IFA at paragraph 23 of Cantarero above:
The test with respect to an IFA is two
pronged and is articulated in Rasaratnam v. Canada (the Minister of Employment and
Immigration),
[1992] 1 FC 706 (CA) and Thirunavukkarasu v. Canada (Minister of Citizenship and
Immigration),
[1994] 1 FC 589 (CA):
The RPD must be satisfied on a
balance of probabilities that there is no serious possibility of the Applicant
being persecuted in the proposed IFA and that in all the circumstances,
including the circumstances particular to the Applicants, the conditions in the
proposed IFA are such that it is not unreasonable for the Applicants to seek
refuge there.
[36]
The
Board based its IFA finding upon the fact that cordon and search operations for
northern Tamils had ended following the 2002 ceasefire. The Board acknowledged
documentary evidence showing that Tamils still had difficulty obtaining
internal refuge; however it found this information irrelevant, as the applicant
had a family network upon which to rely. The applicant noted the following
documentary evidence, dated January 7, 2006 which stated:
In a flagrant violation of basic
democratic rights, calculated to inflame communal tensions, Sri Lanka’s
security forces launched a massive cordon and search operation against Tamil
residents of the capital Colombo on December 31.
…
It was the first major anti-Tamil
crackdown in Colombo since the signing of a 2002
ceasefire agreement between the Sri Lankan government and the Liberation Tigers
of Tamil Eelam…
[37]
Given
the documentary evidence noted above, I find that the Board erred in concluding
that Tamils in Sri Lanka were no longer subject to cordon and search
operations. Regardless of the Board’s findings in this regard, I also find its
conclusion about the applicant’s reliance upon a family network problematic. In
my view, the Board had to address why the existence of a “family network” would
overcome what it identified as “the difficulty of internal refuge for Tamils,
given the fact that the members of the LTTE are now able to travel throughout
the country.”
[38]
The
Board failed to assess whether it was reasonable for the applicant to seek
refuge in Colombo or Kopay, despite
documentary evidence which clearly refuted its findings about the situation
faced by the applicant in the potential IFA locations.
[39]
The application for
judicial review is therefore allowed and the matter is referred to a different
panel of the Board for redetermination.
[40]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[41]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different panel of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The relevant
statutory provisions are set out in this section.
The Immigration
and Refugee Protection Act, S.C. 2001, c.27.:
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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,
(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
(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.
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
(a) to a danger, believed on substantial grounds to exist,
of torture within the meaning of Article 1 of the Convention Against Torture;
or
(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(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,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care.
(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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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:
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;
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.
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 :
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;
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut
se réclamer de la protection de ce pays,
(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,
(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,
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
(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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