Date: 20070727
Docket: IMM-3618-06
Citation: 2007 FC 791
Ottawa, Ontario, July 27,
2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
VASANTHANAYAKI
KANDASAMY
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by Vasanthanayaki Kandasamy from a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (Board) rendered on May 30, 2006, wherein Ms. Kandasamy’s claim to
refugee protection was denied. She now seeks to have her claim reconsidered
because of arguable errors in the Board’s treatment of the evidence.
Background
[2]
Ms.
Kandasamy is a 33-year-old unmarried Tamil from the Jaffna area of Sri Lanka. Her claim
to refugee protection was based on an alleged history of persecution by the Liberation
Tigers of Tamil Eelam (LTTE) and by Sri Lankan government forces stemming as
far back as 1995. Although she professed to have been approached by the LTTE
in an effort to recruit her in early 1990, most of her concerns had to do with
persecution at the hands of Sri Lankan forces and their Tamil collaborators.
[3]
Ms.
Kandasamy offered evidence of mistreatment (including torture) and a series of
arrests and detentions by Sri Lankan government forces between 1996 and 2004.
On the several occasions that she claimed to have been detained, she was able
to secure release by the payment on her behalf of bribes. It was following the
last of these episodes that she left Sri Lanka arriving in Canada through the United
States
on April 26, 2005. She immediately sought protection at the border alleging
that she feared both the LTTE and the Sri Lankan army.
The Board Decision
[4]
Although
the Board accepted that Ms. Kandasamy was a Tamil from Sri Lanka, it rejected
her claim to protection on the basis of credibility concerns. The Board
decision identified numerous contradictions, omissions and implausibilities in
the evidence she offered in support of her claim.
[5]
The
Board expressed considerable scepticism about the initial claim as documented
in Ms. Kandasamy’s Personal Information Form (PIF) to the effect that she was
the only member of her family to have been targeted by the Sri Lankan
authorities on four apparently unrelated occasions over a period of eight
years. The Board also took account of Ms. Kandasamy’s failure to disclose in
her PIF that, for most of the time when she was not in custody, she was in
hiding. She offered the excuse in testimony that she was not aware that this
evidence was important. However when she was confronted by a PIF reference
which stated that she was in hiding for a time following her last detention in
2004, she was unable to offer a plausible explanation.
[6]
The
Board expressed scepticism about the absence of any apparent linkages among
Ms. Kandasamy’s various detentions as set out in her PIF. It was only
when this issue was put to her that she offered some evidence to connect the
events. The Board was unconvinced by this late explanation.
[7]
The
Board decision also reflects a concern about the plausibility that Ms.
Kandasamy’s sister, who had never experienced any similar problems, would be
sent abroad while Ms. Kandasamy remained in Sri Lanka at
considerable risk. On this point, the Board drew the following plausibility
inference:
… I do not find it plausible that the
claimant’s parents would have sent her sister abroad in 2002, because maybe she
could be arrested, and not the claimant who had been already arrested and
tortured at least twice and for whom they had to pay substantial amounts of
bribe money. It was the claimant who had allegedly been hiding, and not her
sister. It was the claimant who was allegedly in danger to be arrested, since
the authorities were actively searching for her, and not her sister.
Confronted with that implausibility, the claimant changed her testimony stating
that her parents tried to send her abroad after each arrest, but were, each
time, cheated by dishonest smugglers. I do not give any credence to this
obviously adjusted answer.
[8]
When
she was questioned further about the apparent coincidence that she was the only
member of the family to be targeted, she explained that one sister was married
and the other was “a little bit fat” and did not “go out that much”. The Board
found these explanations unconvincing.
[9]
The
Board also noted a number of responses to questions concerning Ms. Kandasamy’s
passport and national ID card which the Board found to be inconsistent with
other aspects of her evidence. For example, a significant credibility concern
had to do with Ms. Kandasamy’s evidence that she personally attended at the
government passport office at the same time she claimed that the army was
searching for her and she was in hiding.
[10]
The
Board rejected Ms. Kandasamy’s story of abuse and summed up its views of her
evidence in the following passage:
Considering all the above, I reject the
claimant’s testimony as devoid of all credibility. I do not believe that she
was arrested by the CID, the army and the pro-government Tamil groups, detained
and mistreated. I do not believe that she had to hide, while in Sri Lanka, and that she fled her
country in order to escape persecution.
[11]
After
summarizing the country condition evidence, the Board also rejected Ms. Kandasamy’s
allegations of generalized risk as a Tamil with the following conclusions:
The claimant was never involved in
politics. I reject her allegations that she was arrested in the past and had
problems with the authorities and pro-government Tamil groups. She never had
problems with the LTTE. She insists that she was not a member of the LTTE or
of any other Tamil group. She is not a high-profile rebel wanted by the army,
by the police or by a rival LTTE group. Based on the documentary evidence, I
do not consider that, in the present circumstances, women of the claimant’s age
and profile face a reasonable risk of persecution by the LTTE or other Tamil
militant groups or by the Sri
Lanka army or
the police, just because of their Tamil nationality. I do not consider that
people with the claimant’s profile would personally face a serious risk of
torture, a risk to their lives, or a risk of cruel or unusual treatment or
punishment in Sri
Lanka.
Issues
[12]
(a) What
is the standard of review for the issues raised by the Applicant?
(b) Did
the Board commit any reviewable errors in its assessment of the evidence?
Analysis
[13]
The
issues raised on behalf of Ms. Kandasamy in this application are
evidence-based. The first issue concerns a factual error by the Board. The
second issue concerns the Board’s treatment of evidence of generalized risk
faced by Tamils in Sri Lanka. Having concluded that the Board’s factual
error was not material to the outcome of the claim and that the Board made no
error in its treatment of the evidence of generalized risk, it is unnecessary
to carry out a functional and pragmatic assessment.
[14]
There
is no doubt that the Board made a factual error when it found that Ms.
Kandasamy had failed to mention a fear of the LTTE early in her testimony. The
transcript of her evidence clearly discloses that she volunteered this point
under questioning by the Board. This was, however a relatively minor issue in
the case because Ms. Kandasamy’s primary fears related to her alleged history
of abuse at the hands of the army and other pro-government forces. Her only
evidence of actual contact with the LTTE concerned an early attempt at
recruiting her which she said she able to successfully avoid. Nevertheless, she
speculated that, if she returned to Sri Lanka and refused to join the
LTTE again, “they might kill me”. Given the relative insignificance of
this error to the Board’s overall negative credibility assessment and its
peripheral significance to Ms. Kandasamy’s claims of actual abuse by
pro-government forces, I find that it is not material to the outcome of the
proceeding because there remained a sufficient and, in this case, compelling basis
for the Board’s conclusion: see Iteka v. Canada (Minister of Citizenship),
[2007] F.C.J. No. 504, 207 FC 368 at para. 16.
[15]
Ms.
Kandasamy also contends that the Board was unfairly selective and cursory in
its treatment of the evidence of generalized risk that she claimed to face as a
Tamil in Sri
Lanka.
She referred to country condition reports which contained anecdotal evidence of
forced recruitment of children and adults by the LTTE and to abuse of women
held in custody by government forces. It was contended that the Board had a
duty to consider this evidence before it rejected her claim to protection.
[16]
In
my view, the significance of the evidence of generalized risk was so slight
that it did not require specific mention in the Board’s decision. It was
reasonable for the Board to find that Ms. Kandasamy did not fit the
profile of a person who would be at risk of harm from the LTTE or from the
government – particularly in the face of the categorical rejection of her
evidence of actual persecution. After all, if she had never been the target of
persecution, it was reasonable to conclude that she was unlikely to be victimized
if she returned to Sri Lanka.
[17]
The
fundamental problem with Ms. Kandasamy’s argument on this issue is that the
Board would be essentially obliged to extend refugee protection to every Tamil
claimant who professed a fear of recruitment by the LTTE or of abuse by
government forces simply by pointing to evidence that such practices exist at
some level in Sri
Lanka.
To my thinking, evidence of a generalized risk of persecution must be
considerably more persuasive and specific to a claimant’s profile than the kind
of evidence relied upon by Ms. Kandasamy before it would arguably justify a
favourable protection finding. The evidence relied upon here by Ms. Kandasamy
was not “so important or vital” that a failure to acknowledge it constitutes a
reviewable error: see Jones v. Canada (Minister of
Citizenship), [2006] F.C.J. No. 591, 2006 FC 405 at para. 37.
[18]
In
the result, this application for judicial review is dismissed. Neither party proposed a
certified question and no issue of general importance arises on this record.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
“ R. L. Barnes ”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3618-06
STYLE OF CAUSE: VASANTHANAYAKI
KANDASAMY
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: May 24, 2007
REASONS FOR JUDGMENT
AND JUDGMENT BY: BARNES, J.
DATED: July 27, 2007
APPEARANCES:
Karina Thompson FOR
THE APPLICANT
Linda H-C Chen FOR
THE RESPONDENT
SOLICITORS
OF RECORD:
Robert Blanshay
Law Office
Barristers & Solicitors FOR
THE APPLICANT
Toronto, Ontario
John H. Sims,
QC FOR THE RESPONDENT
Deputy Attorney
General of Canada
Toronto,
Ontario
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