Date:
20130408
Docket:
IMM-6371-12
Citation:
2013 FC 353
Ottawa, Ontario,
April 8, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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SASIKUMAR
PATHMANATHAN
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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]
The
applicant seeks to set aside a decision by the Refugee Protection Division of
the Immigration and Refugee Board of Canada (the Board) which found that he is
not a refugee or a person in need of protection.
[2]
The
Board misapprehended material evidence. Therefore, I would grant the
application for judicial review.
The Applicant’s Claim
[3]
The
applicant is a Tamil citizen of Sri Lanka. In his application for refugee protection
he described his family’s experience during the civil war. The applicant’s
father was killed by the Sri Lankan army and he fled from place to place with
his mother and siblings, living in areas controlled by the Liberation Tigers of
Tamil Eelam (LTTE).
[4]
When
they tried to escape one attack the LTTE forced his mother to leave him behind
with an aunt. In the late 1990s, the LTTE made him dig and repair bunkers. In
1999 he managed to join his family in Colombo and continued his education.
That year, his older brother was arrested and beaten based on accusations that
he supported the LTTE. After being released, the applicant’s brother fled Sri Lanka for Canada where he has refugee protection.
[5]
The
applicant began university in 2004. In June of 2008, there was a deadly
explosion outside of his university. The police detained the applicant along
with a number of other Tamil students. The applicant was released after
approximately six hours, after the police verified his identity and took his
fingerprints and photograph. On other occasions the applicant has been
detained at checkpoints with other Tamils.
[6]
The
applicant obtained a student visa to study engineering in the United Kingdom in September of 2008. He explained that he wanted to continue his studies
and knew he would be safe for at least two years in England. He did not expect
to return to Sri Lanka because he believed he would be eligible for permanent
resident status at the completion of his program. However, in 2010 the
immigration policy changed and he was no longer eligible.
[7]
The
applicant claims that he was afraid to return to Sri Lanka. He feared being
targeted for extortion by groups aligned with the government to identify
supporters of the LTTE, namely the Karuna Group and Eelam Peoples Democratic
Party (EPDP). He believed he would be denied refugee protection in the UK and his brother advised him to come to Canada.
[8]
In
September of 2010 the applicant arrived in Canada on a student visa. He made
an application for refugee protection on November 5, 2010. At the hearing, he
explained that he was fearful of the Sri Lankan army, the police, the Karuna
Group and the EPDP.
Decision Under Review
[9]
In
a decision dated June 1, 2012, the Board denied the applicant’s claim.
[10]
First,
the Board found that the applicant was not credible, despite having informed
the applicant’s counsel that he had found “the claimant to be generally
credible for the key parts of this” at the conclusion of the hearing. The
Board’s reasoning in this section apparently also relates to lack of subjective
fear, though the Board repeatedly uses the term “credibility.”
[11]
This
negative credibility finding, or finding regarding subjective fear, was based
on a number of factual errors:
a. The
date of the explosion at the applicant’s university is said to be 2004, when it
was in fact 2008. The Board erroneously found that the applicant had delayed
leaving Sri Lanka for four years.
b. The
Board found that the applicant traveled to Switzerland and failed to claim
protection there. The Board concluded that the applicant had withheld
information to mislead the Board and did not provide a copy of his passport.
The respondent concedes that this is incorrect. The applicant never traveled
to Switzerland. The applicant also provided his passport.
c. The
Board found that the applicant delayed claiming protection in Canada for “a few months”. In fact, he applied for refugee protection approximately one
month after arriving in Canada.
[12]
The
Board also found that if the applicant was fearful he would have claimed
protection in the UK.
[13]
Second,
the Board found that the country conditions had changed, following the end of
the civil war in 2009. The Board accepted that those suspected of being LTTE
supporters would still be at risk but found that the applicant did not fit this
profile. The Board based this finding on the fact that the applicant had been
released after the explosion at the university and was able to travel using his
own documents.
[14]
The
Board referenced evidence that approximately 7,500 refugees had returned from India since 2006, including several thousand in 2010. The Board also noted that some of
those suspected of being LTTE members had been released from detention.
However, the government did continue to detain LTTE suspects.
[15]
The
Board found that the applicant would not be at risk as a failed refugee
claimant, though he would be subject to a screening process. Again, only those
suspected of having ties with the LTTE would face heightened scrutiny.
[16]
Third,
the Board found that the applicant’s fear of extortion was only a generalized
risk. The Board accepted that rogue members of the Sri Lankan security forces
and the EPDP had been accused of extortion and kidnapping. The Board also
accepted that Sri Lankans returning from abroad are perceived as wealthy and
able to pay.
[17]
Though
the applicant claimed that Tamils are specifically targeted, the Board
referenced documentary evidence which stated that extortion is a general risk,
not specific to ethnicity. The Board also noted that the Federal Court had
found that generalized risks posed by criminal activity could not ground a
claim for protection, in cases regarding Guyana, Haiti and Colombia.
Issue
[18]
The
issue in this judicial review is whether the Board’s decision is reasonable,
satisfying the requirements of “justification, transparency and
intelligibility”: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR.
Discussion
[19]
The
decision under review is substantially flawed.
[20]
As
described above, the Board member mistakenly found that the applicant had
delayed leaving Sri Lanka for four years after being detained (he left within a
few months), failed to claim protection in Switzerland (where he never
traveled) and further delayed claiming protection in Canada for months (it was
approximately one month). These are material errors which grounded the Board’s
finding that the applicant was not credible and lacked subjective fear.
[21]
Aside
from these considerations, there remains only the applicant’s failure to claim
protection in the UK. For this, the applicant provided an explanation which
could have been accepted by the Board. He believed he was on track to gain
permanent resident status through the high-skill migration program. He also
has a brother in Canada. Therefore, I cannot be confident that the outcome
would have been the same had the Board accurately understood the evidence.
[22]
Furthermore,
as the applicant identified, it is a breach of procedural fairness for the
Board to state that credibility is not an issue at the hearing, and then base
its decision on a negative credibility finding: Velauthar v Canada
(Minister of Employment and Immigration), [1992] FCJ No 425 (FCA).
[23]
With
regards to whether the applicant fits the profile of those presently at risk, I
am troubled by the Board’s failure to reference relevant evidence. It is
accepted that those suspected of supporting the LTTE remain at risk. The Board
only considered the fact that the applicant was released after being detained
(notably, his photograph and fingerprints were taken). However, it is also
relevant that the applicant had been forced to work for the LTTE during the
civil war; his brother is a suspected supporter and his father was killed by
the Sri Lankan army.
[24]
I
also note that the Board incorrectly referenced paragraph 108(1)(e) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA)
when considering the present situation in Sri Lanka. This provision applies
when a refugee no longer requires protection because of changed circumstances.
Here, the Board did not accept that the applicant was ever a refugee, finding
that he lacked credibility. While it was incorrect to reference this
paragraph, the error is immaterial. The Board was not required to undertake a
comprehensive analysis of section 108.
[25]
Finally,
on the issue of generalized risk, the Board gave minimal consideration to the
fact that the EPDP is closely affiliated with the government and in fact led by
a government Minister. This connection may indicate the state’s acquiescence
in or even support of torture. This requires the Board to consider paragraph
97(1)(a) of the IRPA. It is insufficient to rely on examples of
criminal gangs in other countries. Additionally, the applicant does not only
fear extortion; he also claims that the EPDP and Karuna Group may falsely
identify him as an LTTE supporter to the Sri Lankan authorities, based on his
Tamil ethnicity.
[26]
The
respondent relies on Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 in arguing
that the decision, when considered in light of the record, falls within a range
of acceptable outcomes.
[27]
The
essence of Newfoundland Nurses is that adequacy of reasons is not a
stand-alone basis for overturning a decision. Rather, “the reasons must be
read together with the outcome and serve the purpose of showing whether the
result falls within a range of possible outcomes”. Reasonableness, not
perfection, is the standard.
[28]
Newfoundland
Nurses does
not authorize a court to rewrite the decision which was based on erroneous
reasoning. The reviewing court may look to the record in assessing whether a
decision is reasonable and a reviewing court may fill in gaps or inferences
reasonably arising and supported by the record. Newfoundland Nurses is
a case about the standard of review. It is not an invitation to the
supervising court to re-cast the reasons given, to change the factual
foundation on which it is based, or to speculate as to what the outcome would
have been had the decision maker properly assessed the evidence.
[29]
Therefore,
I have concluded that the decision is unreasonable and the judicial review is
granted.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted. The matter is referred back to the Immigration Refugee Board of
Canada for reconsideration before a different member of the Board’s
Refugee Protection Division. There is no question for certification. There is
no order as to costs.
"Donald J.
Rennie"
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