Date: 20071031
Docket: IMM-5710-06
Citation: 2007 FC 1123
Ottawa, Ontario, October 31, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
RANJAN DE SERAM
(A.K.A. RANJAN JAYASURIYA ARACHCHIL)
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 Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated September 19, 2006, which found that the applicant was
neither a Convention refugee nor a person in need of protection.
[2]
The
applicant requested that the decision be set aside and the matter referred back
to a newly constituted panel of the Board for redetermination.
Background
[3]
Ranjan
De Seram (a.k.a. Ranjan Jayasuriya Arachchil) (the applicant), is a citizen of Sri Lanka. The applicant sought
refugee status on the basis of his membership in a particular social group,
namely, homosexual men living in Sri Lanka who face persecution and criminal
charges for certain sexual acts throughout Sri Lanka. The
circumstances which led to his claim for refugee status were set out in the
narrative portion of his Personal Information Form (PIF).
[4]
The
applicant’s hardship began during his years as a high school student. He first
became involved with his same-sex partner, Asiri, in grade nine at St. Thomas
College Guruthalawa. The relationship was never accepted by students or
teachers and there were many occasions where students, under orders from
teachers, stoned the applicant and his partner. The applicant was threatened
with removal from school, but was allowed to stay.
[5]
After
high school, the applicant completed a two and a half year college course and
joined the Naval and Maritime Academy. In 1991,
the applicant was successful in securing a contract with a company called M/T
Blue Wave as a seaman. After completing 18 months onboard the ship, the
applicant returned to Sri Lanka to live with his partner Asiri in Colombo. In 1993,
the applicant and his partner opened their own hair and beauty salon. The
applicant wanted to improve and relocate the business and as such, decided to
return to sea to make more money. The applicant signed a contract and sailed
onboard the M/V Lanka Asitha.
[6]
In
1998, the applicant and his partner moved their salon to a new location in
Borella, Colombo. The new
location was equipped with ten new hair booths and all new equipment. During
1998 and 2002, the applicant returned to sea in order to continue his career as
a sailor. In 2002, he returned home to Sri Lanka for good to
be with his partner.
[7]
In
2004, the applicant’s salon and apartment were destroyed by fire while the
applicant and his partner were out. The local police were informed twice but
failed to take action. Both the applicant and his partner moved out of Colombo and
subsequently out of the country to separate locations. In 2005, the applicant
returned to sea. He sailed for five months, but was harassed and humiliated by
the other crew members onboard who had realized he was gay. When the ship
docked in Canada, the
applicant left and sought legal advice about claiming refugee status. In
December 2005, the applicant filed his application for refugee status.
[8]
A
hearing was held September 12, 2006, and a decision was issued September 19,
2006. The Board found that the applicant was neither a Convention refugee, nor
a person in need of protection. This is the judicial review of that decision.
Board’s Reasons for
Decision
[9]
In
its decision dated September 19, 2006, the Board refused the applicant’s
application on the basis that (1) there were issues with credibility; (2) the
applicant had failed to demonstrate that the harassment he faced amounted to
persecution; and (3) the applicant had failed to rebut the presumption of state
protection.
[10]
The
Board noted that the applicant’s testimony concerning the destruction of his
shop was inconsistent with the narrative in his PIF and his Port of Entry (POE)
interview. In his PIF, there was no reference to who had destroyed his shop and
no mention of any death threat written on the wall of the destroyed shop. In
his POE interview, the applicant said that other shop owners in the building
had destroyed his shop and once again, there was no mention of the written
threat. During the hearing, the applicant said that he did not know who had
destroyed his shop, and added that a death threat was written on the wall of
the shop. When asked to explain these differences, the applicant said that he
had guessed who had destroyed his shop and that he was “not in the proper
mental situation” when he completed his PIF. The Board noted that the written
message was not a minor detail, but a major reason in his testimony for leaving
Sri
Lanka
and seeking refugee protection. The applicant agreed.
[11]
The
Board drew a negative inference from the inconsistencies in the applicant’s
statement regarding the risk of personal harm to him. When asked if the people
responsible for destroying his shop knew whether or not the applicant was at
the shop at the time, the applicant responded he was not sure but it was
possible. The Board noted that it did not appear the perpetrators were planning
to physically harm the applicant; they seemed interested only in destroying the
shop. The Board found, on a balance of probabilities, that there was no written
threat to the applicant’s life as part of the shop destruction incident.
[12]
The
Board drew a negative inference from the inconsistencies between the applicant’s
PIF narrative and his testimony in regard to his interaction with the police.
The Board noted that in his PIF, the applicant wrote that he informed the
police twice of the incident and he was repeatedly told there was nothing they
could do, as people in the area were angry because gay people were running a
successful business. During the hearing, the applicant testified that he was
told to leave the police station and that the police were aware he was gay.
When asked to explain these discrepancies, the applicant explained that he
remembered differently when he prepared the written narrative. The Board noted
that the applicant’s testimony clearly implied that the police were
discriminating against him; however, in his PIF, he claimed that it was his
neighbours who were responsible.
[13]
The
Board also made findings on the issue of state protection. When asked if he was
aware of a Sri Lankan gay organization called ‘Companions on a Journey’, the
applicant testified that it was an economic and social elite organization and
there was no place for middle class people like him in it. The Board noted that
the group was quite active, and that there was no documentary evidence to
support the kind of exclusion mentioned by the applicant. The Board found, on a
balance of probabilities, that the applicant’s explanation for not seeking
support from ‘Companions on a Journey’ was not credible. The Board also found
the applicant’s testimony concerning his failure to seek help from either a
senior police officer or from a lawyer not to be credible. The Board further
found that the applicant had not adequately tested the ability and willingness
of the state to protect him.
[14]
With
regards to the issue of persecution, the Board noted that while the applicant
indicated that he had experienced some harassment and demands for money in the
past, he provided no evidence of persecution. It was noted that the applicant
had received an education, including professional training, which had allowed
him a successful career as a seaman. The Board also noted that while the
applicant alleged that he would face criminal charges if he returned to Sri Lanka (on the
basis of being homosexual), there was no evidence disclosed to support this
allegation. The Board also noted that country documents indicated that there
had been no prosecutions in regard to homosexuality in Sri Lanka in many
years.
Issues
[15]
The
applicant submitted the following issues for consideration:
1. The Board committed
an error of law by conducting a microscopic examination of the evidence rather
than a reasonable overall assessment of the totality of the evidence.
2. The Board committed
an error of law by requiring the applicant to approach gay organizations for
assistance when the police refused to assist him.
3. The Board committed
an error of law by failing to conduct a separate section 97 analysis of the
applicant’s future risk.
4. The Board committed
an error of law by conducting a highly selective analysis of the objective
documentary evidence before it and ignoring evidence which was directly
supportive of the applicant’s fear.
[16]
I
would rephrase the issues as follows:
1. Did the Board err in
refusing the applicant’s claim on the basis that he lacked credibility?
2. Did the Board err in
finding that the applicant should have approached non-governmental
organizations once the police had refused to assist him?
3. Did the Board err in
failing to engage in a separate section 97 analysis?
4. Did the Board err in
failing to consider the objective documentary evidence before it?
Applicant’s Submissions
[17]
The
applicant submitted that not every inconsistency in a refugee claimant’s story
can reasonably be used to make a negative credibility finding (R.K.L. v.
Canada (Minister of
Citizenship and Immigration), 2003 FCT 116). The applicant submitted
that the Board is obligated to conduct a fair overall assessment of the
evidence before it. The applicant submitted that “it would not be proper for
the Board to base its findings on an extensive ‘microscopic’ examination of
issues irrelevant or peripheral to the applicant’s claim” (Attakora v. Canada (Minister of
Employment and Immigration (1989), 99 N.R. 168 at paragraph 9 (F.C.A.)).
The applicant submitted that the Board rejected the applicant’s evidence regarding
his interaction with the police on the basis of inconsistencies between his
oral evidence and his PIF narrative. Specifically, the Board noted that the PIF
stated that the police told him there was nothing they could do for him,
whereas his oral evidence was that the police told him to leave the station.
The applicant submitted that the Board appears to be stretching in its search
to find the applicant’s story to be inconsistent. The applicant further
submitted that this is not a major inconsistency and that the applicant’s
overall evidence in this regard remains the same. The applicant submitted that
the Board’s reliance on this minor difference in description as a basis for
rejecting the applicant’s evidence is perverse and patently unreasonable. The
applicant also submitted it was patently unreasonable for the Board to reject,
on the basis of omissions in the applicant’s PIF narrative that a written
threat was made during the destruction of the applicant’s salon.
[18]
The
applicant submitted that the Board erred in finding that the applicant had not
adequately tested the ability and willingness of the state to protect him. The
applicant noted that the Board based this finding on the applicant’s failure to
approach a senior police officer, lawyer or a gay organization for assistance.
The applicant submitted that he made two attempts to report the incident to two
different police officers, but that both times the police refused to take a
report and ordered him to leave the station. The applicant submitted that a
claimant’s testimony of past personal incidents in which state protection did
not materialize are sufficient to rebut the presumption of state protection (Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689). Furthermore, the
applicant submitted that it is an error for a Board to impose on the applicant
the burden of seeking redress from agencies other than the police (Molnar v.
Canada (Minister of Citizenship and Immigration) (T.D.), [2003] 2 F.C.
339). The applicant submitted that by focusing on the applicant’s failure to
approach a gay rights organization or a lawyer, the Board has applied a higher
standard than that envisioned by the Court with respect to the question of
adequate state protection. The applicant also noted that the Board had evidence
before it that police in Sri Lanka are frequent
perpetrators of violence against homosexuals.
[19]
The
applicant submitted that this Court has made it clear that sections 96 and 97
of IRPA are distinct and require a separate analysis (Kilic v. Canada (Minister of
Citizenship and Immigration 2004 FC 84). The applicant submitted that
it is not enough for the Board to make the blanket statement that the applicant
is not a person in need of protection when there is no indication that the
different harms and different requirements considered under section 97 were
truly given consideration. The applicant submitted that the Board clearly
accepted his identity and profile as a young gay man from Sri Lanka and as a
result, was obligated to consider whether, under section 97, there was an
objective risk to the applicant based on that profile (Bouaouni v. Canada
(Minister of Citizenship and Immigration) 2003 FC 1211).
[20]
The
applicant acknowledged that the Board is not obliged to refer to every piece of
evidence before it, but submitted that when the evidence that the Board fails
to address is significant or central to the applicant’s claim, it commits a
patently unreasonable error or law (Cepeda-Gutierrez v. Canada
(Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425
(T.D.) (QL)). The applicant submitted that the Board’s analysis of objective
documentary evidence is extremely brief and comprises only two short
paragraphs. The applicant further submitted that the Board’s review of the
documentary evidence focuses on the criminality of homosexuality in Sri Lanka and fails to
mention that gay men are often assaulted, as well as targeted by the police.
The applicant drew the Court’s attention to the case of Peiris v. Canada (Minister of
Citizenship and Immigration) 2004 FC 1251, wherein Justice Mactavish
considered a case with a very similar set of issues. The Court in Peiris above,
held that while it is open to the Board to weigh the documentary evidence and
reject it, given the importance of the evidence to a central issue in this
case, it was not open to the Board to simply ignore it. The applicant submitted
that the Board had clear evidence before it on the treatment of individuals
similarly-situated to the applicant, and failed to mention this evidence in its
reasons. The applicant submitted that this failure resulted in an error of law.
Respondent’s Submissions
[21]
The
respondent submitted that the appropriate standard of review is patently
unreasonable (Pushpanathan v. Canada (Minister of
Citizenship and Immigration), [1998] 1 S.C.R. 982). The respondent
submitted that the test to establish a fear of persecution is bi-partite. The applicant
must subjectively fear persecution and this fear must be well-founded in an
objective sense (Ward above). The respondent submitted that the Board
considered and weighed all the evidence adduced by the applicant and determined
that he did not show by his behaviour and actions that he had a subjective fear
of persecution. The respondent noted that the Board found that prior to the
destruction of his shop, the applicant’s intention was always to remain in Sri Lanka. The
respondent submitted that while the Board found that the applicant had
experienced some harassment and prejudice in Sri Lanka, there was
no evidence that his experiences reached the level of persecution.
[22]
The
respondent submitted that the key component in determining whether a claimant’s
fear is well-founded is the state’s inability to protect (Ward above).
The state’s inability to protect is the crucial element in determining the
objective reasonableness of the applicant’s unwillingness to seek protection (Ward
above). The respondent submitted that the applicant bears the burden of
rebutting the presumption that, absent a situation of complete breakdown of
state apparatus, a state is able to protect a claimant. The respondent
submitted that it is not enough for the applicant to show that he went to see
some members of the police force and that his efforts were unsuccessful. The
respondent submitted that the Board did not accept the applicant’s argument
that authorities would not be forthcoming with serious effort to protect him as
the victim of a serious criminal act if he were to approach the state for
protection. The respondent also submitted that the Board found no evidence to
support the applicant’s allegation that based upon his past experience, there
was no state protection available to him in Sri Lanka. The
respondent submitted that it is within the jurisdiction of the Board to assess
and weigh all of the evidence before it and, having done so, to draw its own
conclusions from the evidence. The respondent submitted that there was evidence
upon which the Board could conclude that adequate state protection existed for
the applicant and that the heavy onus upon him had not been met.
Analysis and Decision
Standard of Review
[23]
The
Board’s credibility findings are reviewed on a standard of patent
unreasonableness and are therefore accorded a high level of deference (see Juan
v. Canada (Minister
of Citizenship and Immigration), 2006 FC 809 at paragraph 2). The Board may
evaluate the probative value of evidence, including documentary evidence, and
the standard of review applicable to such findings is patent unreasonableness
(see Akhler v. Canada (Minister of Citizenship
and Immigration) 2006 FC 914).
[24]
I
wish to first deal with Issue 4.
[25]
Issue
4
Did the Board err in failing
to consider the objective documentary evidence before it?
The
applicant submitted that the Board’s consideration of the documentary evidence
is extremely brief and comprises only two short paragraphs. The applicant
further submitted that the Board’s review of the documentary evidence focuses
on the criminality of homosexuality in Sri Lanka and fails to
mention that gay men are often assaulted, as well as targeted by the police.
The relevant portion of the Board’s decision reads as follows:
[…] The claimant indicated in his PIF
that he faced criminal charges if he returned to Sri Lanka. No evidence was disclosed to support
this allegation. Country documents indicate that there have been no
prosecutions in regard to homosexuality in many years.
It is clear that Sri Lankan society is
conservative with regard to homosexuality and that the claimant has experienced
harassment and prejudice. It is also the case that homosexuality remains
illegal in Sri
Lanka and that a
19th century law banning homosexuality remains in place. It is,
however, also clear that there have been improvements over recent years in the
treatment of homosexuals in Sri
Lanka and that
the criminalization of homosexuality has not been enforced in Sri Lanka for many years. Two gay
organizations have been involved in a public campaign for legislative change
and being gay in Sri
Lanka carries
less of a taboo. In addition, the claimant’s actions in returning to Sri Lanka
after each of his repeated periods at sea and his indication of his intention
to remain in Sri
Lanka before the
shop destruction incident indicate any subjective fear was mitigated by the
objective situation in Sri
Lanka. The
claimant testified that he hoped to live a successful like with his partner in Sri Lanka and that is why he had always
returned in the past.
[26]
The
applicant relied on the case of Peiris above, in support of his claim
that the Board must consider the documentary evidence regarding police officers
in Sri
Lanka
that assault and target homosexuals.
[27]
The
objective documentary evidence before the Board included the following extracts
from the British Home Office Report: Sri Lanka, September 2005
(revised October 2005) at paragraph 6.245:
. . . During the year, human rights
organizations reported that police harassed, extorted money from, and assaulted
gay men in Colombo and other areas. . . .
(Tribunal
record page 145)
And from Document
LKA35952.E:
Despite the lack of prosecutions under
the law, de Rose claimed that the existence of the law “was being used to wage
an official campaign against gay Sri Lankans” (The Data Lounge 20 Aug. 1998),
and was also linked to homosexuals being blackmailed by police (ibid. 16 Oct.
1998), viewed as “perverts” (ABC 20 July 1999; AFP 28 June 1999), and being
labelled with a “stigma” (ibid.).
(Tribunal
record page 63)
In other information on the treatment of
gay men in Sri
Lanka, sources
have reported the beatings of homosexuals, suicides, fears of “coming out”, and
of homosexuals “generally being treated with “distaste” and “a great deal of
public intolerance (IPS 30 Dec. 1997; ibid. 8 Dec. 1999; AFP 28 June 1999;
ibid. 4 Sept. 2000; ABS 20 July 1999). According to the Data Lounge the gay
community is centred in Colombo, although “there are no bars
or clubs where gay people can congregate” (16 Oct. 1998). However, Human Rights
Watch reported that “organizations with a specialized thematic focus,”
including gay rights, had grown “in strength and number [in 1998] and were
responsible for introducing important issues for public debate” (1999).
(Tribunal
record page 64)
[28]
In
Cepeda-Gutierrez above, Justice Evans stated at paragraph 17:
However, the more important the evidence
that is not mentioned specifically and analyzed in the agency’s reasons, the
more willing a court may be to infer from the silence that the agency made an
erroneous finding of fact “without regard to the evidence”: Bains v. Canada
(Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.).
In other words, the agency’s burden of explanation increases with the relevance
of the evidence in question to the disputed facts. Thus, a blanket statement
that the agency has considered all the evidence will not suffice when the
evidence omitted from any discussion in the reasons appears squarely to
contradict the agency’s finding of fact. Moreover, when the agency refers in
some detail to evidence supporting its finding, but is silent on evidence
pointing to the opposite conclusion, it may be easier to infer that the agency
overlooked the contradictory evidence when making its finding of fact.
[29]
The
above-mentioned documentary evidence is not discussed in the Board’s decision.
The evidence appears to contradict the Board’s finding of fact. It is evidence
that is important to the applicant’s case. The Board is free to deal with this
evidence as it sees fit, but it cannot ignore the evidence altogether when it
is important to a central issue of the case.
[30]
I
am of the opinion that in failing to show that it dealt with the contrary
evidence to the effect that police harassed, assaulted and extorted money from
gay men, the Board failed to consider relevant evidence and made a reviewable
error. I cannot tell what decision the Board would have reached if this
evidence had been considered.
[31]
Because
of my finding on this issue, I need not deal with the other issues raised by
the applicant.
[32]
The
application for judicial review is therefore allowed.
[33]
Neither
party wished to submit a proposed serious question of general importance for
consideration for certification.
JUDGMENT
[34]
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 (IRPA):
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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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