Date: 20130417
Docket: IMM-4944-12
Citation: 2013
FC 392
Ottawa, Ontario, April 17, 2013
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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ANGELIN SAGAYA SUGIRTHA
FERNANDO
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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
I. Overview
[1]
Ms
Angelin Sagaya Sugirtha Fernando, a citizen of Sri Lanka, has been working in Canada off and on since 2009. In 2011, she claimed refugee protection based on her fear of
political persecution in Sri Lanka. She based her claim on the fact that, since
1993, she had been detained by authorities on three occasions on suspicion of
being a supporter of the Liberation Tigers of Tamil Eelam (LTTE). On one of
those occasions, an official tried to sexually assault her.
[2]
A
panel of the Immigration and Refugee Board dismissed Ms Fernando’s claim,
concluding that her testimony was not credible, that her fear was not connected
to any recognized ground for refugee protection, and that she faced a
generalized risk of harm if she returned to Sri Lanka.
[3]
Ms
Fernando argues that the Board’s credibility assessment was unreasonable, that
it erred in finding that her fear of extortion was not a recognized ground for
refugee protection, and that its conclusion on generalized risk was
unreasonable. She asks me to quash the Board’s decision and order another panel
to reconsider her claim.
[4]
I
can find no basis to overturn the Board’s decision and must, therefore, dismiss
this application for judicial review. In my view, the Board expressed valid
grounds for doubting Ms Fernando’s version of events, reasonably found that her
claim was not tied to recognized grounds for refugee protection, and reasonably
concluded that she faced a generalized, not a personal, risk of harm in Sri
Lanka.
[5]
There
are three issues:
1. Was the
Board’s credibility assessment unreasonable?
2. Did
the Board err in concluding that Ms Fernando’s claim was not based on a
recognized ground of refugee protection?
3. Was
the Board’s conclusion that Ms Fernando faced a generalized risk unreasonable?
II. The Board’s Decision
[6]
The
Board did not believe that Ms Fernando was suspected of supporting the LTTE. If
that had been true, officials would not have released her merely on the payment
of a bribe. Further, there was no evidence that she was treated differently at
check points, or at the airport, than other Tamils. Finally, the fact that Ms
Fernando had visited Canada in 2009 and had not sought refugee protection then,
nor immediately on her return to Canada in 2010, indicated that she lacked a
subjective fear of persecution in Sri Lanka.
[7]
The
Board also noted that the fact that a police officer had once tried to touch Ms
Fernando intimately was “opportunistic” and not indicative of persecution.
[8]
The
Board found that Ms Fernando was not detained for political reasons, but in
order to extort bribes from her or her family. These were simply criminal acts
by rogue officials, not persecution. Therefore, her claim fell outside the
definition of a refugee (s 96, Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] – see Annex for provisions cited). Similarly, the risk of
extortion was generalized, not personal to Ms Fernando, in the sense that all
persons of means are at risk of extortion or kidnapping in Sri Lanka (s 97(1)(b)(ii), IRPA).
III. Issue One – Was the
Board’s credibility assessment unreasonable?
[9]
The
Board’s credibility assessment was not unreasonable. It gave several reasons
for doubting that Ms Fernando was suspected of being an LTTE supporter – she
was released after brief periods of detention, she had no significant problems
at security checkpoints or at the airport, she returned to Sri Lanka for a vacation, and she delayed claiming refugee protection when she came back to Canada.
[10]
In
my view, this evidence provided a valid basis for the Board’s credibility
assessment. Therefore, its conclusion was not unreasonable.
IV. Issue Two – Did the
Board err in concluding that Ms Fernando’s claim was not based on a recognized
ground of refugee protection?
[11]
The
evidence clearly showed that Ms Fernando’s principal fear was of extortion. She
testified that she feared that officials would try to extract money from her if
she returned to Sri Lanka from Canada.
[12]
In
my view, the Board reasonably found that extortion was not a recognized ground
of refugee protection. Ms Fernando’s treatment was not connected to her
ethnicity or political beliefs but, rather, her ability to satisfy corrupt officials’
demands for bribes. Therefore, her claim did not fall within s 96 of IRPA.
V. Issue Three – Was the
Board’s conclusion that Ms Fernando faced a generalized risk unreasonable?
[13]
For
similar reasons, the Board reasonably concluded that Ms Fernando faced a
generalized risk in Sri Lanka. It appears she was the victim of criminal
conduct on the part of government officials and was not singled out because of
any personal characteristic. Therefore, her claim was excluded under s 97(1)(b)(ii)
of IRPA.
VI. Conclusion and
Disposition
[14]
The
Board had valid reasons to doubt Ms Fernando’s credibility. In addition, it
reasonably found her claim to fall outside the scope of s 96 and to be excluded
under s 97(1)(b)(ii) of IRPA. Therefore, I must dismiss this application
for judicial review. Neither party proposed a question of general importance
for me to certify, and none is stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
application for judicial review is dismissed.
2. No
question of general importance is stated.
“James
W. O’Reilly”
Annex
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Immigration
and Refugee Protection Act, SC 2001, c 27
Convention
refugee
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.
Person
in need of protection
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.
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Loi
sur l’immigration et la protection des réfugiés, LC 2001 ch-27
Définition
de « réfugié »
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.
Personne
à protéger
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.
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