Date:
20130709
Docket:
IMM-9198-12
Citation:
2013 FC 763
Ottawa, Ontario,
July 9, 2013
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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BIRUINTHAPAN PATHMANAPAN
(a.k.a. Pathmanapan
BIRUINTHAPAN)
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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. INTRODUCTION
[1]
This
judicial review concerns a decision by a member of the Immigration and Refugee
Board [Member] rejecting the Applicant’s claim to be a refugee and a person in
need of protection.
II. BACKGROUND
[2]
The
Applicant is a Tamil from northern Sri Lanka. His family fled to Colombo in 1995. In December 2008 the Applicant’s parents were arrested but released after
a neighbour paid a bribe. In January 2009 the Applicant’s parents were arrested
again, interrogated and assaulted. The Applicant was likewise interrogated and
assaulted but he was released. He had to report to the police weekly.
[3]
After
that incident, the Applicant’s parents went to the US on visitor visas. The
Applicant, however, went to Singapore until December 2009.
[4]
As
the Libertarian Tigers of Tamil Eelam [LTTE] were defeated in May 2009, the
Applicant believed that it was safe to return to Colombo. He claims he
continued to be harassed based, as in the past, on some alleged connection with
the LTTE.
[5]
The
Applicant left Sri Lanka in June 2011 and arrived in the US. He was arrested there and began his asylum process. He abandoned the US process and came to Canada where he claimed refugee protection.
[6]
The
Member found that the determinative issue was credibility. The Member held that
the Applicant had not established the well-foundedness of his fear of
persecution because he was always released from arrest and was able to travel
even outside the country. The Member concluded that this treatment was
inconsistent with any suggestion that he was seen as a LTTE supporter.
[7]
The
Member considered the Applicant’s abandonment of his US asylum claim as counter
indicative of a genuine fear. It significantly undermined his credibility.
[8]
The
Member then turned to the alternative issue of changed circumstances in Sri Lanka and whether those changes supported the allegation of well-founded fear of
persecution.
[9]
In
the Member’s analysis, the Member referred to the 2010 United Nations High
Commissioner for Refugees, Eligibility Guidelines for Assessing the
International Protection Needs of Asylum-Seekers from Sri Lanka (July 5,
2010) [UNHCR Report] and other documents which showed that while information
was often contradictory, Tamils per se were not threatened with
persecution. The Member did conclude that those persons who were in the LTTE or
who were linked to the LTTE could be in danger. The Applicant was held not to
be suspected of being linked to the LTTE.
[10]
Aside
from the UNHCR Report and the United States, Department of State, Sri Lanka:
Country Reports on Human Rights Practices for 2011 (May 24, 2012), the
Member considered the United Kingdom, Border Agency Operational Guidance
Note – Sri Lanka (December 2011) and the report of Denmark, Immigration
Service, Human Rights and Security Issues Concerning Tamils in Sri Lanka:
Report from Danish Immigration Service’s Fact Finding Mission to Colombo Sri
Lanka, 19 June to 3 July 2010 (October 2010). Overall, the Member found the
documents pointed to improved conditions in Sri Lanka for Tamils and that the
Applicant would not be at risk.
[11]
As
a further alternative issue, the Member considered “generalized risk” and found
that as a wealthy or perceived to be wealthy person, he was in a sub-group but
only faced a generalized risk.
III. ANALYSIS
[12]
The
standard of review was generally accepted as “reasonableness”. The Applicant
points out that where the finding at issue is a plausibility finding, the Court
owes little deference to the decision maker. In my view, that is an overbroad
statement. The deference given to a plausibility finding depends on the nature
of the finding and any expertise inherent in the conclusion (Leung v Canada
(Minister of Employment and Immigration), 81 FTR 303, 1994 CarswellNat 673 (FCTD)).
[13]
Many
of the Member’s plausibility findings related to experience from immigration
matters. More importantly, the findings are supported by reasons and are
themselves reasonable.
[14]
There
was nothing unreasonable about the Member questioning the Applicant’s
abandonment of his US asylum application. In addition to the principle that a
claimant should claim at the first point where it is safe to do so, there was
evidence that his claim in the US might be favourably received. The abandonment
and resultant delay was a factor, but not the determining factor in the
credibility finding. As such, it was reasonable.
[15]
The
Applicant has criticized the Member’s method of dealing with conflicting
evidence about changed circumstances. The Applicant suggests that it erred in
law but its selective focus on documentary evidence was unreasonable in the
conclusions the Member reached.
[16]
There
was no such selective focus or imbalance and no failure to consider relevant
matters. The Member used several sources of information and reached a
conclusion on that basis.
[17]
To
the extent that it was an error to not use the most current UNHCR Report, the
whole of the finding concerning change in circumstances is an alternative
determination. Since the principal finding on credibility was reasonable, the
alternative findings are irrelevant even if in error.
[18]
Again,
the issue of “generalized risk” was an alternative issue to the principal issue
of credibility. As the Member’s conclusion on credibility is reasonable, any
difficulties in the “generalized risk” analysis fall away.
[19]
The
Applicant argued that he had provided the Court with a menu of options to quash
the decision. However, this is not ordering in a restaurant and the choices are
not ones of personal preference. The Supreme Court of Canada teaches that
courts should not seek to quash decisions if the records can be said to be a
basis for maintaining the decision (Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3
SCR 708).
IV. CONCLUSION
[20]
Therefore,
the judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“Michael L. Phelan”
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