Date: 20130125
Docket: IMM-6593-12
Citation: 2013 FC 77
Ottawa, Ontario, January 25, 2013
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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P.M.
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Applicant
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and
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THE MINISTER
OF CITIZENSHIP AND
IMMIGRATION CANADA
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
I.
Introduction
[1]
The Applicant is a citizen of Sri Lanka, of Tamil ancestry,
who arrived in Canada in 2010 as one of 492 passengers on the M/V Sun Sea.
He denies any involvement with the Liberation Tigers of Tamil Eelam (LTTE), which
is designated as a terrorist organization in Canada. Nevertheless he claims
refugee protection in Canada on the basis that he is at risk of persecution
because he will be perceived to be associated with the LTTE since he arrived on
the M/V Sun Sea. Moreover, he claims that he is at risk from the Sri
Lankan authorities who will undoubtedly persecute him as a returning refugee
claimant who travelled on the M/V Sun Sea.
[2]
In a decision dated June 12, 2012, a panel of the
Immigration and Refugee Board, Refugee Protection Division (the Board) denied
the Applicant’s claim for protection under s. 96 and ss. 97(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA). The Board
accepted that the Applicant had no ties to the LTTE and made a number of other
key findings:
•
The Applicant could relocate to Jaffna, an internal flight
alternative, and live safely there;
•
The Applicant would not face persecution as a returning
failed Tamil asylum seeker; and
•
The Applicant is not likely to be at risk on the basis of
perceived association with the LTTE as a result of his coming to Canada on the M/V Sun Sea (the sur place claim).
II.
Issues
[3]
The Applicant seeks to overturn this decision, raising the
following issues:
1.
Did the Board err by failing to consider central, relevant
and probative evidence relating to the Applicant’s sur place claim?
2.
Was the Board’s sur place analysis unreasonable
because it was based on incorrect information, assumptions unsupported by the
evidence and unreasonable speculation?
[4]
For the reasons that follow, I have concluded that the
decision should stand.
III.
Standard of Review
[5]
The standard of review applicable to the decision is that
of reasonableness. The role of the court when a reasonableness standard is
appropriate is to determine “whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
the law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47,
[2008] 1 S.C.R. 190 [Dunsmuir]). A court should also
examine whether the decision displays “justification, transparency and
intelligibility within the decision-making process” (Dunsmuir, above at
para 47).
IV.
Analysis
A.
Issue #1: Failure to consider evidence
[6]
The court may presume that the RPD has considered all the evidence,
and the Board is not required to specifically refer to each piece of evidence
presented (Yu v Canada (Minister of Citizenship and Immigration), 2007
FC 1157 at para 8, 66 Imm LR (3d) 153; Lai v Canada (Minister of Citizenship
and Immigration), 2005 FCA 125 at para 90, 253 DLR (4th) 606). However, the
RPD may commit a reviewable error by failing to specify central evidence to the
applicant’s claim which contradicts its reasoning or conclusion (Iordanov v
Canada (Minister of Citizenship and Immigration (1998), 145 FTR 289 at para
11, [1998] FCJ No 367 (TD); Cepeda‑Gutierrez v Canada
(Minister of Citizenship and Immigration) (1998), 157 FTR
35 at paras 15‑17, 27, [1998] FCJ No 1425 (TD)).
[7]
In the context of a record in which there are multiple
items of documentary evidence relating to country conditions, the Board does
not have to refer to every single document. Nonetheless, if the Board fails to
mention the substantive content of critical evidence that contradicts its
findings, then it has erred (Osorio v Canada (Minister of Citizenship and
Immigration), 2012 FC 37 at para 41, [2012] FCJ No 36).
[8]
The Applicant asserts that the Board ignored an article
written in early 2012, posted on the Sri Lankan
Ministry of Defence website, relating primarily to an organization called the
Canadian Tamil Congress (Certified Tribunal Record (CTR) at 1510-1512). This
article alleges that the CTC is a front for the LTTE, seeking to advance the
LTTE’s goals through human rights efforts. The relevant passage states as follows
(CTR, Vol 8 at 1511):
The ongoing investigations reveal the CTC facilitated the
multi-million dollar LTTE run human smuggling operations by MV Ocean Lady (76
crew and passengers) and MV Sun Sea (492 crew and passengers). Spearheaded by
two former Sea Tigers, Ravishankar Kanagarajah of Canada and Shanmugasundaram
Kanthaskaran of the UK, the LTTE also facilitated the passage of over 200 LTTE
leaders, members and their families to Canada… Further, it is revealed that,
not only did the CTC provide legal and financial aid to the LTTE crew and
passengers but also projected that they were bona fide refugees and not
terrorists. As the key LTTE cadres and their families arrived in Vancouver, the very next day Poopalapillai [CTC’s Director of Public Relations] with his
team flew to Vancouver to defend the LTTE infiltrators and counter Canadian
efforts to develop tough legislation. Gary Anandasangaree of CTC provided legal
counsel.
[9]
In the case before me, the Board acknowledges the substance
of this evidence. The Board states that “[t]here is no doubt that the arrival
of the M/V Sun Sea generated significant interest on the part of the public and
government authorities in both Sri Lanka and here in Canada” (Decision at paragraph
74). The RPD further explained that “concerns were expressed by Canadian and
Sri Lankan officials as to the backgrounds and reasons why the M/V Sun Sea
migrants arrived on Canadian shores” (Decision at paragraph 71).
[10]
Similarly, the Board cites other articles raised by counsel
relating to LTTE connections of certain M/V Sun Sea passengers. One
article, dated March 6, 2012 and published by the Presidential Secretariat of
Sri Lanka, explains that an M/V Sun Sea passenger admitted to working
for LTTE prior to his arrival in Canada, and notes that 15 other passengers are
alleged LTTE members (Decision at paragraph 68 referring to CTR Vol 8 at 1525).
The second article is dated 2011 and was posted to the Sri Lankan Ministry of
Defence website. This article explains that one of the M/V Sun Sea
migrants admitted to membership in the LTTE (Decision at
paragraph 68 referring to CTR Vol 4 at 658).
[11]
In sum, I am not persuaded that the Board ignored the
specific documents. The substance of those documents was considered and is not
inconsistent with the Board’s findings. This evidence demonstrates, at the very
most, that the M/V Sun Sea is associated with the LTTE and some, but not
all, passengers may be LTTE members or have LTTE connections. However, the
question is whether, on the totality of the evidence, it was reasonable for the
Board to conclude that the Applicant himself would not be at risk because of
perceived links to the LTTE. As discussed below, the Board reasonably concluded
that this Applicant would not be perceived as LTTE upon his return to Sri Lanka. The fact that particular documents were not referred to does not affect the
outcome of this case.
B.
Issue #2: Unreasonable sur place finding
[12]
The Applicant presented to the Board (and to this Court),
the following line of reasoning supporting a conclusion that the Applicant
would face more than a mere possibility of persecution upon his return to Sri Lanka:
1.
The evidence before the Board demonstrates clearly that
agents of the government of Sri Lanka engage in a systemic use of torture as a
means of securing information or confessions from detainees.
2.
All returning Tamils who were on the M/V Sun Sea
will be subjected to interrogation to determine whether they might have LTTE
associations or information related to those LTTE members who were responsible
for this people smuggling operation.
3.
It follows that there is more than a mere possibility that
the Applicant will be subject to systemic torture upon his return.
[13]
The flaw in the Applicant’s argument arises with his third
step. The Board acknowledged the human rights abuses of the Sri Lanka government and accepted that the Applicant would be detained and questioned upon his
return. However, the Board refused to conclude that there was a serious
possibility that this particular Applicant would be subjected to torture
upon his return. The Board reasoned that, taking into account the specific
circumstances of the Applicant, the Sri Lankan authorities were not likely to
conclude that he was associated with the LTTE . Thus, there was not more than a
mere possibility that he would have a lengthy detention with the risk of
torture.
[14]
The question is whether there was evidence before the Board
upon which such a determination could be reached. In my view, there was. For
example, the Board had before it – and referred to – the fate of other
returning failed asylum seekers. The Board observed that, in spite of two
investigations into the background of the Applicant, Sri Lankan officials “have
reassured themselves that the [Applicant] has no LTTE ties” (Decision at paragraph
33) and “were of the opinion that he presented no risk to the peace and
stability of their country” (Decision at paragraph 35). The Board also referred
to the uncontested fact that the Applicant had been cleared by Canadian
officials of LTTE association after interviews with the Canadian Border
Services Agency which, the Board logically assumed, would be known to the Sri
Lankan officials. Further, the Board considered and explained why it did not
give weight to certain general statements made to the effect that “any Sri
Lankan who fled the country in an unauthorized way must be a LTTE sympathizer”
(Decision at paragraph 70).
[15]
The Applicant submits that the Board erred in its
assumption that the decision of the Board would be persuasive evidence to the
Sri Lankan authorities that he is not LTTE. In this argument, the Applicant
fails to appreciate the entire context in which reference is made to the
Canadian decision. The Board’s suggestion that the Applicant show his Board
decision to the Sri Lankan authorities is not unreasonable in the context of
the decision as a whole. As assumed by the Board and by the Applicant, the Sri
Lankan authorities would know that the Applicant travelled to Canada on the M/V Sun Sea, and would logically conclude that he applied for refugee
protection. Therefore, theoretically speaking, the Board decision could not
place him at greater risk and could be helpful in demonstrating why the
Canadian authorities believed that the Applicant is not a member of the LTTE.
Although there is no evidence that the Board decision would necessarily be
probative to the Sri Lankan authorities, the Board acknowledges that the Sri
Lankan government will conduct its own independent evaluation and this is
phrased merely as an option.
[16]
In support of his argument, the Applicant provided me with
a number of Board decisions in which different panel members of the Board
accepted M/V Sun Sea claimants as Convention refugees, allegedly
following the Applicant’s proposed line of reasoning. The problem is that these
Board decisions do not have precedential value – for very good reason. The
individual facts and records in each case must be examined. For example, in one
of the cases referred to, the panel concluded that the claimant’s profile was
one suspected of having links with the LTTE, thereby exacerbating the risk on
his return.
[17]
Moreover, and more importantly, the decision is reviewable
on a standard of reasonableness. It is possible for different conclusions to be
reached on similar facts. I acknowledge that the Applicant put forward a
rational line of reasoning for finding that the Applicant was at risk because
of his passage on the M/V Sun Sea. However, that does not mean that the
line of reasoning followed by the Board is unreasonable. The existence of a
range of possible outcomes is the hallmark of the reasonableness standard and
is the foundation of the deference owed to decision makers. Whether this
Applicant would face more than a mere possibility of persecution is a factual
question to be determined by the Board. While I or another panel member might
have come to a different conclusion, the decision of this Board was reasonably
open to it on this particular evidentiary record. The Court should not
intervene.
V.
Conclusion
[18]
The decision is not unreasonable and should not be
overturned.
[19]
Neither party proposes a question for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
the application for judicial review is dismissed; and
2.
no question of general importance is certified.
“Judith
A. Snider”
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