Date:
20130524
Docket:
IMM-10366-12
Citation:
2013 FC 511
BETWEEN:
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B223
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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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PUBLIC REASONS
FOR ORDER
(Confidential Reasons for Order
issued 16 May 2013)
[1]
B223
is another young Sri Lankan Tamil male who came to Canada on board the MV Sun
Sea in order to claim refugee status or otherwise to seek Canada’s protection.
This is the judicial review of the rejection of his claim.
[2]
B223
was still a minor when he arrived in Canada. I do not find this fact pertinent
as the Member of the Refugee Protection Division, of the Immigration and
Refugee Board of Canada, who decided the matter, properly applied the Chairperson’s
Guideline 3, Child Refugee Claimants: Procedural and Evidentiary Issues.
Likewise, B223 was treated as a vulnerable person under Guideline 8.
[3]
I
am also not satisfied that the Member got the burden of proof wrong. Counsel
has seized upon isolated bits and pieces of the decision. The burden under s.
96 of the Immigration and Refugee Protection Act is to establish a
serious possibility of persecution, while under s. 97 of the Act the burden is
to establish on the balance of probabilities a personal risk of torture or
worse. That is the legal burden. However, the evidentiary burden to establish
the facts which give rise to a s. 96 claim or to a s. 97 claim is always on the
balance of probabilities, as held by the Court of Appeal in Li v Canada
(Minister of Citizenship and Immigration), 2005 FCA 1, [2005] 3 FCR 239,
[2005] FCJ No 1 (QL). The Member did not fall into error.
[4]
Like
many of those on board of the Sun Sea, B223 lived in northern Sri Lanka and was a witness to many atrocities during the civil war. Following the
government’s victory in 2009, he and his family were swept up and spent some
time in camps before he was permitted to leave, [Redacted]
[5]
He
fears persecution or torture should he be returned to Sri Lanka. He believes that he would be perceived to be a Liberation Tigers of Tamil Elam
[LTTE] sympathiser. He is also afraid of a Tamil paramilitary organisation
which had supported the central government, the Eelem Peoples’ Democratic Party
[EPDP].
[6]
In
a very lengthy and thoughtful decision, the Member dismissed his claim. He was
found not to be credible with respect to the timing of his in-camp interview by
the Criminal Investigation Department of the Sri Lanka Police Service. In his Personal
Information Form, [Redacted] he said the questioning happened some [Redacted].
However, he later testified that it was actually some [Redacted], in
other words shortly before [Redacted]. This change of position was
construed, not unreasonably, as an effort to bolster up his contention that
when he left Sri Lanka he was actually a person of interest to the authorities.
[7]
The
Member concluded that the Minister’s submissions that there had been a change
of circumstances in Sri Lanka were of little utility in this case and not
dispositive. In like manner, he held that a decision of the Immigration and
Refugee Board of Canada designed a “pervasive decision” was not sufficiently
relevant. The Member stated that his duty was to determine, as best he could,
and based on the evidence, whether the claimant, given his personal
circumstances and the current conditions in Sri Lanka, might face a serious
possibility of persecution under s. 96 of the Immigration and Refugee
Protection Act, or a probability of torture or worse under s. 97 of the
Act.
[8]
He
also dealt with the issue of whether B223 could be considered a refugee sur place.
In similar cases, some decision makers have granted refugee status on that
basis, and others have not. He did not. Indeed, if the basis of a refugee sur
place is being a member of the particular social group of Tamil males from
northern Sri Lanka who travelled to Canada on board a human smuggling ship,
this Court has set aside such decisions as being either unreasonable (Canada
(Minister of Citizenship and Immigration v B380, 2012 FC 1334, [2012] FCJ
No 1657 (QL)) or incorrect (Canada (Minister of Citizenship and Immigration)
v B472, 2013 FC 151, [2013] FCJ No 192 (QL) and Canada (Minister of
Citizenship and Immigration) v B323, 2013 FC 190, [2013] FCJ No 193 (QL)).
[9]
The
Member also dealt in a reasonable way with the claimant’s fear of the EPDP, and
of an outfit known as the “Grease Monkeys”.
[10]
Given
that the standard of review is reasonableness, and given the cogent analysis by
the Member, I am not prepared to set aside his decision, which certainly
conforms to the standard set out in Dunsmuir v New Brunswick, 2008 SCC
9, [2008] 1 S.C.R. 190, [2008] SCJ No 9 (QL), at para 47, i.e. it “falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law”. Furthermore, there is ample material on file to justify
the conclusions he reached (Newfoundland and Labrador Nurses’ Union v
Newfound and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708,
[2011] SCJ No 62 (QL)). He put it extremely well when he said:
After taking all of the evidence into account,
including the claimant’s personal circumstances upon which I have concluded
that the claimant is a known quantity to the Sri Lankan authorities with regard
to the LTTE and his age in terms of any Sri Lankan expectations that the
claimant would have any significant knowledge about the ship, I find that the
claimant has not established with credible and trustworthy evidence that there
is a serious possibility he would be persecuted or, likely, be tortured or
abused upon his return or that any detention he might face while he is
questioned would extend beyond the time necessary to go through that process
and retrieve and review the claimant’s records.
When considering the submissions and evidence
provided to me noted above, I have concluded that the UNHCR’s assessment that it
should not be presumed that those who are merely of Tamil ethnicity from the
North would, for that reason, require protection, is to be preferred. The UNHCR
found that there is no longer a need for group-based protection mechanisms for
those people. I agree. With regard to the exposure of those with LTTE links, I
have dealt extensively with that issue as it pertains to this claimant and find
that those connections would not give rise to a serious possibility of
persecution or a probability of section 97 risks or danger if he returns to Sri Lanka.
[11]
The
parties and the Court agree that there is no serious question of general
importance to certify.
“Sean Harrington”
Ottawa, Ontario
May
24, 2013
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