Date:
20130815
Docket:
IMM-5909-12
Citation:
2013 FC 870
Ottawa, Ontario,
August 15, 2013
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Applicant
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and
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B272
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application by the Minister of Citizenship and Immigration (the Minister
or the Applicant) for judicial review of a decision of Ms. Michal Mivasair (the
Board Member), a Member of the Immigration and Refugee Board (the IRB or the
Board), Refugee Protection Division (RPD). In its decision dated June 1, 2012,
the Board determined that the Respondent is a Convention refugee.
[2]
For
the reasons that follow, I have determined that this application ought to be dismissed.
Facts
[3]
The
Respondent submits that the Board Member carefully and accurately summarized
his claim and the evidence submitted. Since the Minister took no issue with
the Board’s factual summary, the Respondent submits that its reasons should be
relied upon as correctly stating the testimony.
[4]
According
to the Board Member, the Respondent, now 24 years old, is a young Tamil male
born in Northern Sri Lanka. The Respondent has parents and siblings living in Sri Lanka, although one brother has been missing since 2006. The area in which the
Respondent grew up, completing grade 11 and obtaining a General Certificate in
Education through private studies, was declared to be a high security zone by
the Sri Lankan Army (SLA) during the civil war.
[5]
The
Respondent’s family was displaced from their village several times during the
civil war, which at one point became the site of a large SLA camp. In 2006,
before the closure of the A-9 road, one of the Respondent’s brothers went to
visit another brother living in Vanni. The A-9 road was closed when the war
began again and the brother has been missing since that time. In August or
September of 2006, the Respondent returned to his village with his family, but
the family was afraid to leave the house due to the violence and kidnappings
that were occurring in the area. The Respondent did not attend school again
until April 2007, when he was 18 years old.
[6]
When
travelling back and forth to school, the Respondent was frequently subjected to
identification checks. Although he was not suspected of being a member of the
Liberation Tigers of Tamil Eelam (LTTE) at that time, he nonetheless claimed
that he would be hit with raw palmira stems and chased during those
encounters. SLA attacks on villages and the arrest of innocent civilians were
not uncommon at the time.
[7]
Around
the time of the Respondent’s 20th birthday, he made an annual,
early-morning visit to a nearby temple where he was confronted and arrested by
the SLA. Due to a recent invasion of his village by the LTTE, he was accused
by the SLA of spying and being associated with the incident. Attempting to
obtain information regarding the LTTE’s location, the SLA beat and interrogated
the Respondent, repeatedly hitting him with a baton and the butt of a rifle and
kicking him in the stomach and face.
[8]
When
the Respondent’s parents intervened, he was released from a military camp on
the condition that he report back daily. He did so and was humiliated, beaten
and interrogated on a regular basis, as the SLA searched for any possible
connection he might have with the LTTE, despite his assertion that he had not
associated with the group at any point in his life. The Respondent was
required to do odd jobs for the SLA, including checking for land mines, and was
terrified that he would be further detained or killed during the reporting
period, particularly given the violence he witnessed against other victims.
[9]
When
the SLA learned that the Respondent’s brother was missing, he was questioned
about his brother’s whereabouts. The SLA informed him that his brother was an
LTTE member and that they suspected the Respondent was working with him as an
informant. The Respondent was required to quit school in order to comply with
the reporting requirements and otherwise avoided leaving his home. Although
the civil war concluded in May 2009, little changed for the Respondent at that
time and he was required to continue reporting on a daily or almost daily basis
for another eight months.
[10]
In
early 2010, the Respondent was informed that he was no longer required to
report. He feared that this meant that he would be killed, as he knew of
others, including one schoolmate, who were shot and killed once freed from
their reporting obligations.
[11]
The
Respondent and his family decided that he needed to flee the country to
safeguard his life. He obtained a genuine passport shortly thereafter and, five
days later, flew from Colombo to Bangkok, Thailand. Four months after that,
the Respondent left for Canada aboard the MV Sun Sea, arriving here on
August 13, 2010, and claiming refugee protection the same day.
[12]
The
Respondent testified at his hearing that even today conditions have not
improved in his village and the SLA still rounds up the villagers, requiring
some to regularly sign in. Although former LTTE members have been released
from detention, some continue to be beaten and are required to report. After
filing his Personal Information Form (PIF), the Respondent’s parents informed
him that the SLA officials visited the family home looking for him and took a
photograph of him from the home as well.
[13]
The
Respondent fears the local SLA because he suspects that they believe him to be
an LTTE member and because his brother was deemed to be an LTTE member and is
still missing. He also fears that his name will be included on a list of
people who have run away from Sri Lanka, as he believes that he was only
released from his reporting obligations so that the SLA could spy on him in an
attempt to catch other LTTE members. He submits that he will not be able to
move to any other area in Sri Lanka as he would be required to register and
questioned on the basis that he is from the Northern region in which the LTTE
were concentrated.
[14]
He
believes that he is further at risk because he traveled to Canada on the MV Sun Sea. According to what he has heard, one migrant from the ship
who was returned to Sri Lanka has since disappeared. He submits that the Sri
Lankan government believes that all MV Sun Sea passengers are LTTE
members. In addition, he is aware that his name was submitted to the Sri
Lankan government for verification of his identity, and he claims that the Sri
Lankan government will be sure to question him since the agent who arranged his
passage took his passport.
[15]
When
the Respondent flew out of Sri Lanka on February 6, 2010, he was detained and
questioned for three hours about whether he was a member of the LTTE and about
the purpose of his travel. He was then permitted to leave on a flight which had
been delayed by two hours as a result of this questioning.
[16]
The
Board Member concluded her statement of the facts as follows:
The
claimant fears interrogation, torture, detainment, and death by any of the many
government authorities in Sri Lanka. Besides witnessing others being tortured
over the years in Sri Lanka, the claimant himself, had been beaten many times
over the years by the SLA. This happened when the claimant was a boy, long
before he was beaten on an almost daily basis when he was 20 years old and
registering on an almost daily basis with the SLA.
Decision,
para 40
Decision under review
[17]
The
Board Member notes at paragraph 41 of her reasons that the Canada Border
Services Agency (CBSA) filed a notice of intent to participate in the refugee
protection claim by appearing at the hearing to present evidence, to question
witnesses, and to make representations pursuant to paragraph 170(e) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA or the “Act”) and
Rule 25 of the Refugee Protection Division Rules (SOR/2002-228, repealed
SOR/2012-256, s. 73) (the “RPD Rules”). At the March 8, 2012 RPD hearing, the
Respondent was the only witness; however, both parties filed written
submissions after the hearing.
[18]
The
Board Member ultimately concluded that the Respondent is a Convention refugee
as he has a well-founded fear of persecution for a Convention ground in Sri Lanka. The Board Member found that the Respondent had established his refugee
protection claim on a sur place basis: that is, based on events that
occurred after he left Sri Lanka.
[19]
The
Board Member first commented on the Respondent’s identity, finding him to be a
Sri Lankan Tamil national from the northern Jaffna region, and on his
credibility, finding him to be “a credible, reliable, and trustworthy witness”
(Decision, at para 49). The Board Member accepted the Minister’s objection to
a letter provided by the Respondent’s sister noting that she would not have an
opportunity to assess the sister’s credibility. She accepted testimony from
the Respondent that the SLA was looking for him in November 2011, however,
dismissing the Minister’s objection that the evidence was self-serving and
should be ignored.
[20]
The
Board Member found the allegations in the Respondent’s PIF to be credible,
accepting that the SLA is aware that the Respondent is not living with his
family and that they took a photograph of him from the family home. She
cautioned, however, that despite finding the Respondent’s evidence to be
credible, she was not bound to accept his inferences about the meaning of any
allegations or evidence filed in connection with the case.
[21]
The
Board Member went on to consider the persecutor’s perception of the
Respondent’s profile, both prior to his voyage on the MV Sun Sea and
after boarding the ship. She found that prior to his departure from Sri Lanka, the Sri Lankan authorities did not suspect that the Respondent was an LTTE
member or that he was associated with the LTTE. In that regard, the Board Member
relied on the cessation of the reporting requirement (despite the Respondent’s
belief that this was merely a ruse), his ability to obtain a legal passport in
Colombo, and the fact that he was permitted to board his scheduled flight and
leave Sri Lanka after being interrogated for over three hours at the Colombo
airport. She notes that these events occurred at a time when the government
was still rounding up suspected LTTE members and “took their responsibilities
extremely seriously to insure [sic] that no LTTE member or suspected member
exited Sri Lanka” (Decision, para 55).
[22]
The
Board Member stated that she had no doubt that the SLA in the Respondent’s home
area would have been contacted while he was detained at the airport regarding
the group’s knowledge and suspicion of the Respondent’s affiliation with the
LTTE. She found that he would not have been permitted to leave until the Sri
Lankan government had satisfied itself that he was not an LTTE member.
[23]
The
Board Member did not address whether young Tamil men from the Jaffna area not
suspected of being LTTE or associated with the LTTE have a well-founded fear of
persecution because she determined that the Respondent is a Convention refugee
on a sur place basis. In this regard, she found that the Respondent’s
profile changed when he chose to board the MV Sun Sea, a ship suspected
by both Canada and Sri Lanka of carrying some LTTE members, human smugglers and
war criminals into Canada.
[24]
The
Board Member summarized various statements made by the Sri Lankan Ministry of
Defence on its official website in connection with terrorism and the MV Sun
Sea, referenced a news report written by a terrorism expert regarding
Canada and the LTTE, and summarized various Canadian newspaper stories
regarding the MV Sun Sea. Concluding that the Sri Lankan government
would keep abreast of Canadian news since it is aware that the MV Sun Sea
was an LTTE ship, the Board Member found that they would quickly discover that
the Respondent was a passenger on the MV Sun Sea or, if they were
unaware, that he would be foolish not to admit it when questioned, given that
they would know he had travelled to Thailand and is returning from Canada.
[25]
The
Board Member dismissed the Minister’s argument that since the Canadian
government found the “overwhelming majority” of the passengers not to be LTTE
members, the Sri Lankan government would similarly not perceive passengers
generally to be LTTE members. She noted that the Minister’s representative had
failed to recognize that Sri Lanka will have to determine for itself which
passengers are aligned with the LTTE and what the Respondent may know about the
LTTE members who were on board, particularly as Canada’s determination would
not necessarily reflect any later association or new information the Respondent
might obtain either about LTTE activities in Canada or those members who were on
the ship.
[26]
The
Board Member concluded that the Sri Lankan authorities may question their own
previous assessment given the Respondent’s flight and that the Respondent,
having travelled on the MV Sun Sea, now has a profile of ‘suspected LTTE
member’ or ‘suspected person having information on LTTE members and efforts in
Canada to reinvigorate the LTTE’. In arriving at this conclusion, she held as
follows:
[T]he combination of pre-MV Sun Sea facts
concerning the claimant’s involvement with the LTTE and the SLA, along with the
claimant’s boarding a supposed LTTE ship increases the likelihood that the
claimant will be perceived as a suspected LTTE member or an associate of the
LTTE. He may also be deemed to have knowledge about the LTTE’s alleged growth
from within Canada.
Decision, para 71
[27]
In
finding that “the claimant had established a nexus to various Convention
grounds as outlined in section 96 of the Act”, the Board Member relied
on Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, concluding that
the Respondent falls within certain particular social groups (e.g., ‘Tamils suspected
of being LTTE members’, ‘Tamils suspected of having information on LTTE
members’, and ‘LTTE associate or supporter in the diaspora working to
reinvigorate the LTTE’) (Decision, at paras 73 and 76). The Board Member then
found, however, citing relevant definitions in Ward, that “[t]hese
particular social groups or even the nationality ground of being a Tamil can
also be subsumed by the Convention ground of ‘political opinion’” and that “the
claimant having travelled on the MV Sun Sea will be deemed to have a political
opinion contra the state of Sri Lanka […]” (Decision, at paras 74-75).
[28]
In
assessing the Respondent’s well-founded fear of harm, the Board Member
summarized her interpretation of the burdens of proof established in Orelian
v Canada, [1992] 1 FC 592 (CA) at p. 605, and Adjei v Canada (Minister
of Employment and Immigration), [1989] 2 FC 680 (CA) at para 8, and
concluded that she must find the Respondent to be a Convention refugee “if
there is a ‘reasonable chance’ or ‘more than a mere possibility’ that the
claimant would be persecuted after examining the totality of the credible,
reliable, and trustworthy evidence presented in this case” (Decision, para 78).
[29]
The
Board Member commented on the relevance of the documentary evidence submitted
by both parties, finding that the credible and reliable evidence established a
“reasonable chance or more than a mere possibility that the claimant would be
detained, interrogated, tortured, and fac[e] a risk to his life when he first
arrives in Sri Lanka”, whether in his home near Jaffna or in Colombo, the
identified Internal Flight Alternative in this case (Decision, para 81).
[30]
The
Board Member distinguished the IRB’s Persuasive Decision of November 19, 2010,
a decision which she herself authored, finding that the Respondent’s profile in
the current case “is that of a person suspected of having links with the LTTE
or information about the LTTE and [of] someone deemed to have a political
profile that is antagonistic toward Sri Lanka”, and not merely that of a Sri
Lankan of Tamil ethnicity originating from the north of Sri Lanka for whom
there is no longer a need for a presumption of eligibility (Decision, para 82).
[31]
The
Board Member’s decision then goes on to comment on the likelihood that the
Respondent would face initial detention upon his return to Sri Lanka. She found that “the documentary evidence indicates that the claimant will be
interrogated, detained, and may face a reasonable chance of persecution by Sri
Lankan authorities immediately upon his return to Sri Lanka” (Decision, para
83).
[32]
The
Board Member cites evidence suggesting that individuals returned from third
countries as a result of failed asylum processes are likely to be detained and
interrogated upon their return, and those deemed to be or suspected of being
associated with the LTTE face additional questioning and may be further
detained, increasing the risk of torture, enforced disappearance and extrajudicial
killing.
[33]
The
Board Member acknowledged at paragraph 86 of her decision that “[o]ther
documentary sources indicate that only a few returnees to Sri Lanka have been detained at the airport upon arrival”. She states, however, that she
cannot find that those sources reflect the situation the Respondent might face
with his profile since “[w]ithout more information about the profiles of the
returnees in those documents, [she] cannot ascertain if those non-detained
returnees were suspected of having an association or information about the
LTTE”. She also declines to give any weight to the existence of certain
negotiated agreements with Sri Lanka that ensure the safety of failed asylum
claimants when passing through airport security checks in Colombo, finding that
there was no evidence to suggest that Canada had such an agreement in place at
the time of her decision.
[34]
At
paragraph 88 of her decision, the Board Member explains why she has found that
there is “more than a mere possibility” that the Respondent will be detained,
questioned and seriously harmed during such a detainment by the Sri Lankan
authorities. Most notably, she found that the Sri Lankan government believes
that there were LTTE members on board the MV Sun Sea working to
reinvigorate the LTTE in Canada and that it would question the Respondent in
that regard, just as he was questioned in Canada. However, there would be more
than a mere possibility that he would also face serious physical harm.
[35]
The
Board Member comments on the Respondent’s testimony regarding Sathy, an MV
Sun Sea returnee who has disappeared since he was returned to Sri Lanka. A paralegal’s affidavit states that Sathy was found inadmissible, detained upon
his return to Sri Lanka, and, according to his wife and brother, beaten and
deprived of food while in detention from July 2011 until at least January
2012. While the Board Member does not know precisely why Sathy was found
inadmissible, she accepts his treatment upon return as current evidence
indicating that “a returnee found inadmissible has been detained for over nine
months and in that time has been beaten and deprived of food”. She concludes
that Sri Lanka may immediately detain and seriously harm the Respondent upon
his return, despite the fact that it is aware that Canada is likely watching.
To connect the Respondent’s profile with Sathy’s, the Board Member found that
“the claimant has political opinion like Sathy’s, that will be deemed
antagonistic toward Sri Lanka” (Decision para 91).
[36]
The
Board Member goes on to refer to the Respondent’s chances of being detained as
“a reasonable chance”, noting that in addition to the factors already set out
in her decision (namely, any possible connection he may have with the LTTE, his
knowledge about whether the MV Sun Sea was an LTTE ship, whether the
Respondent was involved with human trafficking and smuggling or whether he
knows who was involved with organizing the ship’s departure from Thailand,
which members of the ship were LTTE members, whether he possesses any intelligence
since he travelled with LTTE members on the ship, whether the Respondent has
formed a relationship with the LTTE while he resided in Canada, and whether he
was involved in the LTTE’s alleged reformation from within Canada), the
authorities may also be interested in learning whether the Respondent has
knowledge of whether the LTTE has regrouped in Canada. During such detention,
she found there is “more than a mere possibility [he] will face physical abuse,
torture, or death” and be “at significant risk of persecution”, as described by
Human Rights Watch in Response to Information Request LKA103815.E (Decision,
para 93).
[37]
In
addition to being a passenger on the MV Sun Sea, the Board Member
comments on a constellation of facts that would increase the Respondent’s risk
of persecution (and likelihood of facing harm in accordance with section 96 of
the Act), including the fact that his brother, missing since 2006, is an LTTE
member, and that the Respondent was monitored on a daily basis under suspicion
of being a member or supporter of the LTTE until 2010 (after the end of the
civil war). While acknowledging that the authorities did not perceive the
Respondent to be an LTTE member or associate at the time he left Sri Lanka, the
Board Member found that, now that he has travelled to Canada on a ship
containing some LTTE members, they “may re-evaluate their prior assessment”
(Decision, para 94).
[38]
Commenting
on the Respondent’s potential return to Jaffna or Colombo, the Board Member
noted that the Minister of Defence in Sri Lanka has emphasized the importance
of keeping a strong military and intelligence presence in Tamil areas in order
to ensure the LTTE does not re-establish itself. Suspected LTTE members
continue to face serious risks, including arbitrary arrest, torture in custody,
and other ill-treatment by the military and other paramilitary groups.
[39]
While
Colombo has a smaller military presence than Jaffna, the Board Member found
that there is “more than a mere possibility” that the Respondent would be found
and face persecution, given that residents of Colombo still face random checks
and those with real or perceived LTTE profiles are targeted. In particular, she
found there is a “good chance” the Respondent would be registered by the police
or in some other way, putting him on the radar for further arbitrary detentions
and serious harm, in light of the fact that state officials are granted
immunity from prosecution and granted overbroad detention powers by statute and
decree (Decision, para 100).
[40]
She
also found that, given their source and the fact that citizens cannot criticize
the Sri Lankan government or its agents without fear of harm, various
statements that torture does not take place in Sri Lanka are not trustworthy or
reliable.
[41]
Given
that official impunity is rampant and legal (even constitutionalized) in Sri Lanka, the Board Member found that the presumption of state protection is rebutted and there is
no other domestic or international oversight that could hold Sri Lanka’s state authorities accountable. In particular, she observed that Sri Lanka is not an electoral democracy and power is concentrated in the hands of a
president whose latest election was not deemed to be either fair or free. She
concluded that the Respondent could not possibly obtain redress from the state
actors he fears and that the Minister’s submission that the court system is
functioning to some degree, is not persuasive. The evidence relied on
indicates that there is almost no judicial oversight into the many cases of alleged
torture that take place in Sri Lanka, particularly for detainees with suspected
links to the LTTE, who are rarely brought to trial.
[42]
The
Board Member commented that it is noteworthy that the Minister included in its
disclosures the CBSA’s December 2011 Update: Sri Lanka’s Human Rights
Environment, which comments on the fact that the human rights environment
in Sri Lanka remains favourable for further abuses to occur, a situation that
is aggravated by government impunity and a lack of response to events viewed as
war crimes by the international community (Decision, para 110). In addition,
many governmental organizations face curbs on their activities, as well as
official harassment and threats (Decision, para 111).
[43]
For
all of those reasons, the Board Member granted the Respondent’s claim.
Arguments of the
parties
[44]
In
addition to submissions made at the March 14th hearing, the parties
have provided this Court with preliminary memoranda, a reply, and further
memoranda. Their arguments are fulsome and thorough, and I will attempt to
summarize them in broad strokes to distil the gist of their submissions.
Arguments
of the Applicant
[45]
The
Minister argues that the Board Member made several errors in reaching her
decision, many of which are allegedly sufficient on their own to justify the
intervention of the Court.
[46]
The
Minister first argued that the Board Member applied the wrong standard of proof
to key findings of fact, and, second, that she made unreasonable findings of
fact and ignored evidence concerning its central findings of fact. The
Minister’s argument regarding the applicable standard of proof is that the Board
Member applied too low a standard of proof in coming to the factual conclusions
on which her risk assessment was ultimately made. The Minister submits that
there is a distinction between the test for establishing a risk of persecution,
for which the threshold is more than a mere possibility, and the standard of
proof for establishing the facts of a claim, which must be established on a balance
of probabilities. The Minister argues that the Board Member needed to find
that the Respondent will be suspected of being an LTTE member or
associate before she could find that he faces more than a mere possibility of
being at risk of harm due to that suspicion, and that she “erred by applying
the lower threshold to its findings of fact, instead of the correct standard of
the balance of probabilities”. In particular, the Board Member found only that
the SLA “may now question their prior assessments that he was not an
LTTE member or associate” and that the Respondent “may be deemed to have
knowledge about the LTTE”, while neither fact is established on a balance of
probabilities.
[47]
The
Minister also argued that the Board Member erred in finding that the Sri Lankan
authorities would suspect the Respondent, upon returning to Sri Lanka, of being an LTTE member or a person with information on LTTE members and their efforts to
reinvigorate the LTTE in Canada. Despite the Respondent’s evidence that he did
not have any involvement with the LTTE and the tribunal’s own finding that the SLA
had been satisfied that the Respondent was not associated with the LTTE, the Board
Member cites the Respondent’s previous involvement with the LTTE to be a factor
that would increase the likelihood the Respondent would be perceived as a
suspected LTTE member. According to the Minister, the Board Member erroneously
relied on the Respondent having past involvement with the LTTE, in coming to
her determination that the Respondent is a refugee sur place.
[48]
In
the Minister’s view, the Board Member’s determination that the Respondent would
be suspected of having LTTE associations hinged on the Respondent having been a
passenger on the MV Sun Sea. Although the Minister accepts that the RPD
found that the SLA was aware the Respondent was missing and took a photograph
from his family home, it asserts that the RPD did not find that this showed a
renewed interest in him and that such interest would cause him to be at risk upon
his return to Sri Lanka. The Minister does not believe that the RPD relied in
any way on its finding that the SLA had questioned the Respondent’s parents in
2011. Based on the Minister’s reading, the only new event relied on by the RPD
to establish the Respondent’s sur place claim, is his travel on the MV
Sun Sea. As a result, the Minister submits that the only logical
conclusion (given that the Respondent was cleared of suspicion prior to leaving
Sri Lanka) is that the Sri Lankan government would suspect all 500 passengers
of being LTTE members. The Minister adds that the Board Member cites no
objective evidence that indicates the Sri Lankan government suspected all or
even many of the MV Sun Sea passengers of being LTTE members. The fact
that 14 of the 492 passengers were accused of having terrorist links is not a
reasonable basis for the finding that the Sri Lankan authorities would suspect
the Respondent, along with all the other MV Sun Sea passengers, of being
LTTE members. The evidence that the MV Sun Sea was primarily carrying
passengers who paid the LTTE for the voyage, and in particular the evidence
demonstrating the Sri Lankan government was aware of the nature of the
operation, was important evidence contrary to the Board Member’s conclusion
that the Sri Lankan authorities would suspect individuals of LTTE membership by
virtue of their travel on the MV Sun Sea.
[49]
The
Minister further submits that the Board Member erred in finding that the
Respondent has a well-founded fear of risk. The Board Member’s determination
of risk is based on her earlier findings that the Sri Lankan authorities may
question their prior assessment that the Respondent is not involved with the
LTTE; that the Respondent would be suspected to be an LTTE member or associate;
that he may be deemed to have knowledge of the LTTE’s Canadian operations; and
that he will be deemed to have a political opinion contrary to the state of Sri
Lanka. Since these findings are faulty, according to the Minister, the Board Member’s
finding that the Respondent will face a reasonable chance of harm and risk to
his life when he returns to Sri Lanka is also in error.
[50]
Finally,
the Minister submitted that the Board Member erred in finding a nexus to a
Convention ground. The evidence before the Board Member did not support her
conclusion that the Sri Lankan authorities would conclude from the fact that the
Respondent had traveled aboard the MV Sun Sea, that he has a political
opinion contrary to the state of Sri Lanka. It may be that the SLA will want
to question the Respondent upon his return to determine whether he has any
knowledge about the LTTE terrorist organization in Canada or on the ship, but
that does not equate to perceiving the Respondent as having a political opinion
contrary to the Sri Lankan authorities.
[51]
As
for the particular social group nexus, the Minister argues that the legal
criteria established in Ward are not met. The RPD found that the
Respondent is a member of the following particular social groups: Tamils
suspected of being LTTE members; Tamils suspected of having information on LTTE
members; and LTTE associates or supporters in the diaspora working to
reinvigorate the LTTE. Contrary to the Respondent’s assertions, except for
being a Tamil (not identified by the Board Member as a relevant group), the
relevant characteristics are all changeable characteristics, and travelling on
board the MV Sun Sea was something the Respondent did, rather than something
he is. Nor is there any suggestion that travelling on the MV Sun Sea or
being suspected of being an LTTE member is fundamental to the Respondent’s
human dignity. The third category identified in Ward is equally
inapplicable, as it cannot reasonably be argued that travelling on the MV
Sun Sea or being suspected of being an LTTE member is a “former voluntary
status, unalterable due to its historical permanence”. To summarize, voluntarily
choosing to set sail for Canada on an illegal human smuggling ship does not
engage the defence of human rights or anti-discrimination, and it is not so
fundamental to human dignity that it constitutes a particular social group.
Arguments
of the Respondent
[52]
According
to the Respondent, the Board Member’s reasons were entirely reasonable and the
Minister’s arguments mischaracterize the Board Member’s findings and
misconstrue the law, ultimately failing to demonstrate any error. The
Respondent submits that the sole issue in this case is whether the Board
Member’s decision falls within a range of reasonable outcomes, based on the
evidence before her.
[53]
According
to the Respondent, the Board Member did not contradict herself or rely on a
“non-existent fact” when she found that his previous involvement with the LTTE
would increase the likelihood that he would be perceived as a suspected LTTE
member, after having accepted earlier that he had never been a member of that
organization. By referring to his involvement with the LTTE and the SLA, she
merely wanted to connote that the Respondent lived in a high conflict area
where the SLA and LTTE were very active, that he had been suspected of being a
member of or interacting with the LTTE, and he had repeatedly been questioned
about this by the SLA.
[54]
The
Respondent goes on to refute the submission that the Board Member erred in
finding that he could be persecuted based on a perceived political opinion or
as a member of a definable social group. For perceived political opinion, the
Respondent submits that a Tamil associating with or concealing information
about the LTTE could be seen as sympathetic to the LTTE or hostile towards the
government. The Applicant’s argument that there is no evidence that the Sri
Lankan authorities view Tamils who flee illegally as potentially sympathetic to
the LTTE is incorrect, in his view, as there was evidence that authorities act
on this perception by torturing deportees. Furthermore, the Respondent’s own
circumstance is that he had previously been seen as suspect. Any action by the
Respondent which brings him into contact with LTTE militants would renew
suspicion on his political opinion. Furthermore, he argues that the Minister’s
attempts to distinguish a desire to question the Respondent from the potential
risks associated with such interrogation is flawed and not supported by any
authority.
[55]
As
for nexus to a particular social group, the Respondent starts by saying that
the Minister has ignored the fact that the Board Member specified that the
entire issue was subsumed in perceived political opinion. He goes on to submit
that the Board Member reasonably defined a social group based on unchangeable
characteristics, tailored to his individual characteristics and circumstances.
Contrary to the situation of Mr. Ward, whose fear of persecution was based on
former membership in a terrorist organization, the Respondent cannot change the
fact that he is a “Tamil suspected of being” an LTTE member or having
information about the LTTE; this is not a group he chose to join and can quit.
[56]
Although
some of the Respondent’s arguments regarding the applicable standard of proof
seem to miss the nuance of the Minister’s submissions, the Respondent
ultimately argues that the Minister’s emphasis on finding that he “will” be
prosecuted, implying absolute certainty, constitutes a complete misconception
of the law. According to the Respondent, the fact that the Board Member stated
that the Respondent “may” face specified risks in various portions of her
decision is not problematic. The Board Member found that the Respondent was
previously seen as suspect, that his travel on the MV Sun Sea gives new
reason to interrogate him, and that the authorities have shown renewed interest
in him. All of these findings were made on a balance of probabilities and were
findings of fact, along with the Board Member’s further findings with respect
to the current state of human rights in Sri Lanka. It is in this context that
she went on to analyse the potential motivations of the Sri Lankan authorities.
Issues
[57]
This
case raises the following key issues:
(i) What
is the applicable standard of review?
(ii) Did
the Board Member make findings of fact unsupported by the evidence?
(iii)
Did the Board Member err in concluding that the Respondent’s claim had a
nexus to a ground in the Convention refugee definition pursuant to section 96
of the IRPA?
(iv) Did
the RPD apply the correct standard of proof?
Analysis
(i)
What is the applicable standard of review?
[58]
The
parties are in agreement that all the questions raised in this application for
judicial review should be determined on the reasonableness standard. I am
aware that Justice Harrington has certified a serious question relating to the
applicable standard of review in related cases dealing with successful MV
Sun Sea claimants: see Canada (Minister of Citizenship and Immigration)
v B472, 2013 FC 151; Canada (Minister of Citizenship and Immigration) v
B323, 2013 FC 190; Canada (Minister of Citizenship and Immigration)
v A011, 2013 FC 580. That question, which has not yet been decided by
the Court of Appeal, reads as follows:
Is review by this Court of the meaning of
“membership in a particular social group” in the United Nations Convention
relating to the status of refugees, and reflected in s. 96 of the Immigration
and Refugee Protection Act, as determined by a Member of the Refugee
Protection Division, of the Immigration and Refugee Board, on the correctness
or reasonableness standard?
[59]
In
the case at hand, however, it seems to me that the arguments turn not so much
on the interpretation of the Convention grounds per se, but rather on
mixed questions of fact and law. More particularly, the question does not
focus on the definition of a “particular social group”, but whether the
Respondent falls within such a group. Other than the three cases decided by
Justice Harrington and two cases of the Federal Court of Appeal related to the
interpretation of the United Nations Convention (Febles v. Canada
(Minister of Citizenship and Immigration), 2012 FCA 324, at paras 22-25; Feimi
v Canada (Minister of Citizenship and Immigration), 2012 FCA 325, at para
14), all other related decisions of this Court have applied a reasonableness
standard: see, inter alia, Canada (Minister of Citizenship and
Immigration) v B134, B130, B133, B131 and B132, IMM-8010-12; Canada
(Minister of Citizenship and Immigration) v B377, 2013 FC 320; Canada
(Minister of Citizenship and Immigration) v B344, 2013 FC 447; Canada
(Minister of Citizenship and Immigration) v B451, 2013 FC 441; Canada (Minister
of Citizenship and Immigration) v B420, 2013 FC 321; Canada (Minister of
Citizenship and Immigration) v A032, 2013 FC 322; Canada (Minister of
Citizenship and Immigration) v B399, 2013 FC 260; Canada (Minister of
Citizenship and Immigration) v B342, IMM-914-12; Canada (Minister of
Citizenship and Immigration) v B380, 2012 FC 1334.
[60]
After
having carefully reviewed all those decisions, I come to the conclusion that
the reasonableness standard should apply. Even if the question of nexus
tangentially turns on the proper interpretation of this category, it would
still be a
question of statutory interpretation of the Board’s home statute that raises
neither a constitutional question, nor a question of law of general importance
to the legal system as a whole, much like the phrase “people smuggling” found
in paragraph 37(1)(b) of the IRPA: see B010 v Canada (Minister of
Citizenship and Immigration), 2013 FCA 87. To that extent, I fully agree
with the comments made by Chief Justice Crampton when determining the proper
standard of review in B380:
[13] The
Board’s findings with respect to the issue of nexus to a ground of protection
set forth in section 96 raises a question of law and a question of mixed fact
and law. The question of law is whether there are limits to the scope of the
words “particular social group” in that section and, if so, the extent of those
limits. That is a question of interpretation of the Board’s home statute and
the related jurisprudence, and does not involve issues of central importance to
the legal system that are outside of the RPD’s expertise, issues of true
jurisdiction or vires, constitutional issues or the jurisdictional lines
between two tribunals. Accordingly, the applicable standard of review is
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, at paras 55 - 61,
[2008] 1 S.C.R. 190 [Dunsmuir]; Alberta (Information and
Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, at
paras 30 – 47, [2011] 3 S.C.R. 654).
[14] The
question of mixed fact and law in respect of the issue of nexus is whether
there was sufficient evidence on the record before the RPD to permit the RPD to
conclude that the Respondent is a member of a particular social group, within
the meaning of section 96. That is also subject to review on a standard of
reasonableness (…).
[61]
The
same can be said with respect to the last question related to the appropriate
standard of proof applied by the RPD. While the identification of the
appropriate standard of proof could conceivably be reviewable on a correctness
standard (B377, at para 10; Republic of Cyprus (Commerce and
Industry) v International Cheese Council of Canada, 2011 FCA 201, at paras
18-19), the application of that standard of proof to the facts, is a question
of mixed fact and law reviewable on a reasonableness standard. Indeed, Justice
Noël came to that conclusion in a very similar case, accepting that the question
of whether the RPD applied a wrong standard of proof to its findings of fact by
basing critical elements of its decision on speculation and out-dated, unclear
evidence was assessable on a reasonableness standard as it raised mixed
questions of fact and law (see B344, at para 28).
(ii) Did the
Board Member make findings of fact unsupported by the evidence?
[62]
As
previously mentioned, the Applicant questions the Board Member’s reliance on
the Respondent’s past involvement with the LTTE in arriving at her determination
that the Respondent is a refugee sur place. According to counsel, the
Board Member could not cite the Respondent’s previous involvement with the LTTE
to be a factor that would increase the likelihood the Respondent would be
perceived as a suspected LTTE member, after having previously concluded that
the SLA had been satisfied that he was not associated with the LTTE.
[63]
It
is true that the Board Member, in analyzing the persecutor’s perception of the
Respondent’s profile before he boarded the MV Sun Sea, came to the
conclusion that the Sri Lankan authorities did not suspect that he was an LTTE
member or that he was associated with the LTTE (see paras 51-58 of the
Decision). The Board came to that finding not only because he was able to
obtain a passport in Colombo, but also because he was able to leave the country
after having been interrogated for more than three hours. As the Board states
at para 58 of its decision:
I have no doubt that in the three hours that the
claimant was detained by the Sri Lankan government authorities at the airport,
that the SLA in the claimant’s home area was contacted, as to its knowledge and
suspicions about the claimant’s affiliation with the LTTE. If there were any
concern as to the claimant’s bona fides, I find that the claimant would not
have been able to fly out of Sri Lanka on February 6, 2010.
[64]
The
Board Member did find, however, that the Respondent’s profile changed when he
chose to board the MV Sun Sea. For that proposition she relied on the
Sri Lankan’s Ministry of Defence official website, according to which, inter
alia, “[t]he LTTE smuggles persons on LTTE ships such as the MV Sun Sea
into Canada” and “[t]he LTTE is actively operating outside Sri Lanka”. She
also referred to a news report in Sri Lanka by a terrorism expert stating that
the RCMP had segregated dozens of the 492 illegal migrants who had arrived on
board the MV Sun Sea on suspicion they could be linked to the LTTE, and
also stating that Canada is the favourite destination of terrorists and criminals
as it has been chosen to be the location wherein the LTTE leadership will once
again reorganize to destabilize Sri Lanka. She also quoted from a number of
Canadian newspapers reporting on LTTE members who have been found aboard the MV
Sun Sea, and found that even if the government of Sri Lanka has not been
informed by the Canadian authorities that he was a passenger on the MV Sun
Sea, as claimed by the Respondent, it would be foolish for him not to admit
it as the Sri Lankan authorities would quickly find out.
[65]
It
is on the basis of that evidence, combined with his previous brush with the SLA respecting his involvement with the LTTE, that the Board Member came to the conclusion
that the Respondent will be perceived as a suspected LTTE member or an associate
of the LTTE. Crucially, the Board Member wrote, before coming to her
conclusion:
Furthermore, Sri Lankan authorities may now question
their prior assessment that the claimant was not an associate or member
of the LTTE. Very soon after the claimant was freed from having to regularly
report to the SLA on an almost daily basis, he fled Sri Lanka and sailed to Canada on an LTTE ship, according to Sri Lanka’s Minister of Defense. The claimant had been
reporting to the SLA because the SLA had suspected that the claimant was either
a member or associate of the LTTE. The SLA also believed and perhaps still
does that the claimant’s brother is an LTTE member. As of the date of the
hearing, the claimant’s brother is still missing. The family has searched for
their missing son at various detention camps but cannot locate him.
Decision, para 70
[66]
This
extract clearly shows that the Board Member was well aware of her previous
finding and was not contradicting herself. When read in context, the Board
Member’s statement faulted by the Minister (“I find that the combination of
pre-MV Sun Sea facts concerning the claimant’s involvement with the LTTE
and the SLA...”) was clearly not a mistake. It may have been best to refer to
the Respondent’s “suspected” involvement with the LTTE and the SLA, but this is undoubtedly what she meant. This is made even clearer by the fact that
she speaks of his involvement with the SLA; since the Respondent has never been
a member or an associate of the SLA, she could only be referring to his
dealings with the SLA when he was considered a suspect.
[67]
The
Applicant’s position, which amounts to saying that once found not to be a
member, ally or supporter of the LTTE by the Sri Lankan authorities, the
Respondent will somehow continue to be similarly perceived in the future come
what may, is simply untenable. It would only be logical for the Sri Lankan
authorities to revisit their assessment, if they indeed believe that some LTTE
members, associates or sympathizers were on board the MV Sun Sea.
[68]
The
Applicant further contends that the Board Member’s finding that the Respondent
would be suspected of having LTTE associations as a result of having been a
passenger on the MV Sun Sea is unreasonable, as it would require that
the Sri Lankan authorities suspect all of the nearly 500 passengers on the MV
Sun Sea of being LTTE members. According to the Minister, the evidence
does not support this conclusion. Not only have there been only 14 passengers
accused of having terrorist links, but there was evidence that the Sri Lankan
government recognized that the MV Sun Sea was primarily carrying
passengers who had paid the LTTE for the voyage.
[69]
Once
again, I find the Board Member’s conclusion that the Respondent now has a
profile of ‘suspected LTTE member’ or ‘suspected person having information on
LTTE members and efforts in Canada to reinvigorate the LTTE’, to be entirely
reasonable. I note that the Board Member addressed head-on the Minister’s
argument with respect to the fact that only 14 passengers have been found to
have LTTE connections by the Canadian government. Her answer to that argument
is cogent and compelling:
[68] What the Minister’s Representative fails to
recognize is that Sri Lanka will have to determine for itself, for its own
national security, which passengers were or are now presently aligned with the
LTTE and what information the claimant may know about the LTTE members that
were on the MV Sun Sea. Sri Lanka is resolute to stamp out the LTTE
before it can ever re-emerge in Sri Lanka and reignite a military conflagration
against the Sri Lankan Government.
[69] It is not logical that any country reeling from
a 26 year brutal civil war would relinquish its right to determine for itself
who is a security risk and rely solely on a foreign country’s possibly
out-dated determination on these matters. Any determination made by Canada about the claimant’s association with the LTTE would not necessarily reflect any later
association or any new information that he might have about LTTE activities in Canada and LTTE members on board that ship.
[70]
It
goes without saying that the Sri Lankan authorities, concerned as they are with
the potential resurgence of the LTTE, will want to reach their own conclusions
as to who is and who is not an LTTE member or sympathizer. They would not
necessarily rely on a foreign government’s determination in that respect, if
only because they would be applying different laws as well as different legal
standards, rules of procedure and evidentiary norms. Such a conclusion
undoubtedly falls within the range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
[71]
As
for the argument that the Board Member ignored the fact that the Sri Lankan
authorities are aware that the MV Sun Sea was primarily carrying paying
passengers who wanted to be smuggled to Canada, is equally without merit. As
conceded by the Applicant, the Board Member is presumed to have consulted all
the evidence that was before her, and she did not have to refer to every piece
of that evidence in her reasons. Moreover, she was aware of that consideration
as she stated that the Ministry of Defence of Sri Lanka claims on its own web
site that the LTTE smuggles persons on LTTE ships similar to the MV Sun Sea
in Canada. The Applicant would have the Court believe that this is a factor
likely to minimize the risk the Respondent would face upon return. However, an
equally plausible inference can be drawn from this fact, and also appears to
have been drawn by the Sri Lankan Secretary of Defence when he stated that the
money paid by passengers on the MV Sun Sea “will be used to further
promote the separatist cause, and perhaps even sponsor future terrorist
activities in Sri Lanka” (Certified Tribunal Record, p. 886). Giving tens of thousands
of dollars to an LTTE-organized ship (as the government of Sri Lanka claims)
could be seen in a dim light by the Sri Lankan authorities and reflect badly on
all the passengers, who may be assumed to have at least some sympathy for the
LTTE.
[72]
Finally,
it is clearly wrong to infer from the Board Member’s reasoning that the Sri
Lankan authorities would have to suspect that everyone on board the MV Sun
Sea is an LTTE member. The Board Member never suggested as much, and did
not predicate her decision solely on the Respondent’s travel on the MV Sun
Sea. Contrary to the situation in B380, where the RPD had
significant credibility concerns with respect to the claimant, the Respondent
in the case at bar was found credible, reliable and trustworthy. The Board
Member accepted that he suffered persecution at the hands of the SLA and was
suspected of being an LTTE member or associate at various times prior to
leaving Sri Lanka. It is as a result of the combination of these facts and of
the Respondent’s boarding a supposed LTTE ship that the Board Member concluded
as she did. The
Board Member also clearly took into account the fact that the Respondent’s
brother is believed to be a member or an associate of the LTTE by the SLA (see para 70 of the Decision). Even if the Board Member did not mention this factor
explicitly in that part of her decision, she was also cognizant of the fact
that the SLA has looked for the Respondent at the family home and took a
photograph of him from his home. In light of this evidence, the Board Member
could reasonably find that there is sufficient evidence the Respondent would be
suspected of having LTTE associations by the Sri Lankan authorities. Such
findings of facts are entitled to the highest degree of deference, and should
not lightly be displaced even if the Court may have come to a different
conclusion.
iii) Did the
Board Member err in concluding that the Respondent’s claim had a nexus to a
ground in the Convention refugee definition pursuant to section 96 of the IRPA?
[73]
It
is clear from the definition of a Convention refugee and well-settled law that
there must be a nexus between the harm feared and one of the five grounds
listed in the refugee definition, namely race, religion, nationality,
membership in a particular social group or political opinion. In Ward,
the Supreme Court attempted to delineate and give some content to the concept
of “particular social group”. According to the Court, there are three possible
categories of particular social group:
The meaning
assigned to "particular social group" in the Act should take into
account the general underlying themes of the defence of human rights and
anti-discrimination that form the basis for the international refugee
protection initiative. The tests proposed in Mayers, supra,
Cheung, supra, and Matter of Acosta, supra, provide
a good working rule to achieve this result. They identify three possible
categories:
(1) groups
defined by an innate or unchangeable characteristic;
(2) groups
whose members voluntarily associate for reasons so fundamental to their human
dignity that they should not be forced to forsake the association; and
(3) groups
associated by a former voluntary status, unalterable due to its historical
permanence.
The first
category would embrace individuals fearing persecution on such bases as gender,
linguistic background and sexual orientation, while the second would encompass,
for example, human rights activists. The third branch is included more
because of historical intentions, although it is also relevant to the
anti-discrimination influences, in that one's past is an immutable part of the
person.
Ward, at p 739,
para 70
[74]
Counsel
for the Applicant made much of the fact that the Board found the Respondent to
be a member of the following particular social groups: “Tamils suspected of
being LTTE members”, “Tamils suspected of having information on LTTE members”
and “LTTE associate or supporter in the diaspora working to reinvigorate the
LTTE”. I agree with the Applicant that the Board Member has not explained how
these groups fit into the legal definition of a particular social group.
[75]
The
first category clearly does not apply as it embraces persecution based on
immutable characteristics such as gender, linguistic background and sexual
orientation or race. The second category is also inapplicable because there is
no suggestion that travelling on the MV Sun Sea or being suspected of
being an LTTE member is fundamental to the Respondent’s human dignity. The
last category is a little bit more problematic. I agree with the Applicant
that the mere fact of travelling on the MV Sun Sea or of being suspected
of being an LTTE member, without more, cannot be equated to a “former voluntary
status, unalterable due to its historical permanence”. I agree with Chief Justice
Crampton in B380 that travel aboard the MV Sun Sea does not
constitute a particular social group, and that choosing to travel aboard a
human smuggling ship does not engage the defence of human rights or
anti-discrimination, which is a paramount consideration for determining whether
a person is a member of a particular social group. This is not to say,
however, that a different set of facts could not lead to a different
conclusion. If, for example, an ethnic group chose to seek refuge together in
a manner condemned by the authorities in their home country, each member of
that group may well claim to be part of this particular social group. However,
there is no such evidence in the case at bar.
[76]
Counsel
for the Respondent submits that the definition of a social group can be refined
to incorporate experiences characterizing the refugee, and that much like women
from China who had undergone forced sterilization and women who have been
subjected to domestic abuse, the Respondent cannot change the fact that he has
been suspected before or that he has travelled on the MV Sun Sea. While
appealing at first sight, this argument cannot hold sway in my humble opinion.
First of all, I fail to see how Tamils suspected of being members or associates
of the LTTE can be considered as forming a group “associated by a former
voluntary status”. Moreover, even assuming such a group exists, it cannot be
said to have as its reason d’être, the defence of human rights or the fight
against discrimination. Second, being suspected of being in or being aware of
the LTTE is not an unalterable characteristic, as evidenced by the fact that
the Respondent was not considered a suspect at the time he left Sri Lanka.
[77]
Be
that as it may, the Board Member made it clear that the particular social
groups she identified and even the nationality ground of being a Tamil can be
subsumed by the Convention ground of ‘political opinion’ (Decision, para 74).
Contrary to the situation in B380, the Board Member did not rest her
conclusion exclusively on the Respondent’s membership in a particular social
group as a passenger of the MV Sun Sea but also on his perceived
political opinion. To that extent, the facts of this case bring it much closer
to the decision reached by my colleague Justice O’Reilly in B399 than to
the scenario dealt with by Chief Justice Crampton in B380. Just like in
B399, the Respondent was found credible and the Board Member accepted
that he was repeatedly detained, arrested and ill-treated by the SLA because of his perceived association with the LTTE. The Board Member also took into
consideration the fact that the SLA has shown renewed interest in him and that
his brother is believed to be a member of the LTTE. On the basis of all the
evidence that was before her, the Board Member could reasonably find that the
Respondent’s fear of risk is linked to the Convention ground of perceived
political opinion.
iv)
Did the RPD apply the correct standard of proof?
[78]
It
is well settled that in order to establish a Convention refugee claim, a
claimant must establish the facts of his case on a balance of probabilities.
The Supreme Court explained in Chan v Canada (Minister of Employment and
Immigration), [1995] 3 S.C.R. 593, that “both the existence of the subjective
fear and the fact that the fear is objectively well-founded must be established
on a balance of probabilities”. The claimant must also show that there is a
“serious possibility”, or more than a mere possibility, that the claimant will
be persecuted if the claimant returns to his or her country: see Adjei v
Canada (Minister of Employment and Immigration), [1989] 2 FC 680 (CA), at
paras 5-6; Lopez v
Canada (Minister of Citizenship and Immigration), 2006 FC 1156.
[79]
The
Applicant argues that the Board Member employed too low a standard of proof in
coming to the conclusion that the Respondent would be deemed to be an LTTE
member or someone having information about the LTTE’s activities. Relying on
paragraphs 70 and 71 of the decision, counsel faults the Board Member for
stating that the Sri Lankan authorities “may” question their assessment that
the Respondent was not connected to the LTTE as a result of his travel on the MV
Sun Sea, and for finding that the Respondent “may” also be deemed to have
information about LTTE activities in Canada. While it was open to the Board Member
to find that the Respondent may face persecution in Sri Lanka as someone suspected of having LTTE connections, it is submitted that the Board Member
erred in finding the Respondent would in fact be suspected of such connections
on a lower standard of proof than that of a balance of probabilities.
[80]
I
agree that the Board Member might have been more explicit in separating the two
portions of her analysis. I believe, nevertheless, that she correctly
articulated the applicable standards of proof and I am satisfied, reading the
decision as a whole, that her application of the standards to the facts is
reasonable.
[81]
She
prefaced her analysis of the well-founded fear of harm with a clear statement
of the applicable standard of proof, even quoting from Adjei in support
of her reasoning:
[77] In order to find that the claimant has a
well-founded fear of harm if returned to Sri Lanka, I must find that there is
credible, trustworthy, and reliable objective evidence on a balance of
probabilities that demonstrates that the claimant faces a reasonable chance of
being persecuted if he were to return to Sri Lanka. This Standard of Proof carries
a low threshold, well below a balance of probabilities. The Court in Adjei
expounded:
What is evidently indicated by
phrases such as “good grounds” or “reasonable chance” is, on the one hand, that
there need not be more than a 50% chance (i.e., a probability), and on
the other hand that there must be more than a minimal possibility. We believe
this can also be expressed as a “reasonable” or even a “serious possibility”,
as opposed to a mere possibility. [Italics added]
[78] In the context of this claim, if there is a
‘reasonable chance’ or ‘more than a mere possibility’ that the claimant would
be persecuted after examining the totality of the credible, reliable, and
trustworthy evidence presented in this case, then I must find the claimant to
be a Convention refugee.
[82]
She
then went on to find, based on the documentary evidence and on the Respondent’s
own evidence, that the Sri Lankan authorities will quickly determine
that the Respondent was a passenger on the MV Sun Sea (paras 65-66) and will
not rely on Canada’s assessment of which passengers have LTTE
connections (para 68). It is only in addition to these factors that the Board
Member determined that the Sri Lankan authorities may revisit their
prior assessment of the Respondent and that he may be deemed to have
knowledge about the LTTE’s alleged growth from within Canada. Indeed, she concluded that portion of her analysis by stating that the Respondent
now “has a profile of ‘suspected LTTE member’ or ‘suspected person
having information on LTTE members and efforts in Canada to reinvigorate the
LTTE’” (para 72).
[83]
On
the whole, I have not been persuaded that the Board Member applied the wrong
standard of proof to the facts underlying her determination. Even if some of
her conclusions are more speculative than others, she was undoubtedly well
aware of the threshold to be met and she did find, based on her overall
assessment of the facts, that the Respondent will be suspected of being a
member or a sympathizer of the LTTE on a balance of probabilities.
[84]
I
note that my colleague Justice Noël disposed of a similar argument by the
Minister in B344, and I adopt his comments in the context of the case at
bar:
The review of the documentary evidence on all
matters including the attitude of the Sri Lanka government towards Sri Lankan
returnees, its use of torture, its perception of the MV Sun Sea
including the most recent statement by the Defence Secretary that the voyage of
the MV Sun Sea is an example of the LTTE’s international shipping
criminal operations to smuggle people to western countries which is used to
raise money for the separatist cause was well done, balanced and the
conclusions arrived at were well justified. I do not find any speculation done
by the RPD in its assessment of the evidence nor do I find that any of its
findings was based on outdated or unclear evidence. The Applicant disagrees
with the RPD’s determinations and would like this Court to review the evidence
and come to a different result. The RPD’s findings were reasonable and the
intervention of this Court is therefore not warranted.
B344 at para 48
Conclusion
[85]
For
all the reasons set out above, I find that this application for judicial review
should be refused.
[86]
The
Minister has not proposed any question for certification. Counsel for the
Respondent has proposed the following question in the event that the application
for judicial review is granted:
Is judicial review by the Federal Court of a
determination by the Refugee Protection Division of the Immigration and Refugee
Board of Canada interpreting the grounds set out in the Convention refugee
definition on the correctness or reasonableness standard?
[87]
A
similar (although slightly narrower) question has been certified by my
colleagues Justice Harrington in B472, B323 and A011 and
Justice Mosley in The
Minister of Citizenship and Immigration v B171, B169, B170, 2013 FC 741. In
those cases, the question deals specifically with the meaning of “membership in
a particular social group”, as opposed to all the grounds set out in the
Convention and reflected in section 96 of the IRPA. Since my decision
does not turn on that question, and since there is no disagreement as to what
political opinion (real or perceived) means, the proposed question would not be
determinative of the appeal and there is therefore no need to certify it.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
dismissed. No question is certified.
"Yves de
Montigny"
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