Docket:
IMM-2796-13
Citation: 2013 FC 1106
Ottawa, Ontario, October 30, 2013
PRESENT: The Honourable Madam Justice Kane
|
|
|
BETWEEN:
|
|
B198
|
|
Applicant
|
|
and
|
|
MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
(Confidential
Reasons for Judgment and Judgment issued October 29, 2013)
[1]
The applicant, B198, is a
23-year-old citizen of Sri Lanka of Tamil ethnicity who arrived in Canada on August 13, 2010, along with 492 other passengers and crew on the MV Sun Sea,
an unregistered ship, following a long and difficult journey from Thailand.
[2]
The applicant asserts that
if he is returned to Sri Lanka, he will face a risk of persecution by reason of
race, nationality, membership in a particular social group and political
opinion. He also asserts that he faces a risk to his life, cruel and unusual
treatment or punishment and danger of torture in Sri Lanka.
[3]
The Immigration and Refugee
Board (the Board) denied his claim for protection as a
Convention refugee and as a person in need of protection pursuant to sections
96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the Act
) on March 12, 2013.
[4]
He now seeks judicial review
of that decision pursuant to section 72 of the Act.
[5]
For the reasons that follow, the application for
judicial review is dismissed.
Background
[6]
The applicant’s father was
killed by the Liberation Tigers of Tamil Eelam [LTTE] in 1995. His mother then
sent him and his half brother to her parents’ home until he was seven years
old. The applicant’s mother remarried, however, her second husband was killed in
1996 by the Sri Lankan Army [SLA] and the government affiliated paramilitary
group, the People’s Liberation Organization of Tamil Eelam [PLOTE]. The
applicant’s mother was later arrested by the SLA in 1999 and imprisoned for
about two and a half years.
[7]
The applicant returned to
live with his mother in Vavuniya after her release.
[8]
In February 2008 the
applicant’s half-brother was abducted. His whereabouts remain unknown. The
applicant believes that the PLOTE was responsible for the abduction. The
applicant’s mother reported her son’s abduction to the International Committee
of the Red Cross [ICRC] and human rights offices in Vavuniya. She also went to
the offices of the SLA, the police and the PLOTE regularly to inquire about her
son and continued to search for him.
[9]
In June 2009 the SLA and PLOTE searched the applicant’s home, asking for the applicant. The applicant
alleges that the army told his mother “you better stop reporting and inquiring
about your son’s disappearance … you have another son and we can take him too,
so you better give up.”
[10]
The applicant’s mother
obtained a passport for him in August 2009. On November 18, 2009, they
travelled to Colombo. The applicant then flew to Thailand after obtaining a
one-month tourist visa.
[11]
In May 2010 the applicant
boarded the MV Sun Sea which set sail in July and arrived in Canada on August 13, 2010. The applicant applied for refugee protection upon arrival.
[12]
The applicant’s refugee
hearing was held on January 30, 2012 and the Board rendered its decision 14
months later on March 12, 2013.
The decision under review
[13]
The Board provided a
thorough analysis of the applicant’s claim and detailed reasons.
[14]
Although the Board found
some aspects to be credible, the Board identified inconsistencies and omissions
and noted the lack of corroborative evidence it would otherwise expect.
[15]
The Board accepted that the
applicant’s father was killed by the LTTE; his stepfather was killed by either
the SLA or the PLOTE; his mother was arrested, detained and mistreated by the SLA from February 1999 to June 2001; and his half brother was kidnapped, likely by the
PLOTE. The Board noted that the half brother had a Vanni ID card confirming
his presence in the LTTE Vanni District unlike the applicant.
[16]
Despite this credible
evidence the Board found important aspects of the applicant’s evidence to be
inconsistent with the primary basis of his claim which was that he was sought
by the SLA or its affiliates.
[17]
The Board found that the
applicant failed to establish that he would face a serious risk of persecution
or probable harm or danger if he returns to Sri Lanka based on his “specific
profile”. The Board characterized him as a young Tamil male from Northern Sri Lanka with no prior difficulties with the government, the army, the
intelligence forces or the paramilitary agencies. The Board noted that Tamils
from the North are no longer presumptively eligible for protection on that
basis alone. Rather, the United Nations High Commissioner for Refugees [UNHCR]
Eligibility Guidelines for Assessing the International Protection Needs of
Asylum-Seekers from Sri Lanka of July 5, 2010 call for an individualized
assessment.
[18]
The Board found that there
was nothing in the applicant’s past that would lead Sri Lankan authorities to
link him to the LTTE and he should not be presumed to require protection.
[19]
The Board also found that
the applicant failed to establish that he faced danger from the PLOTE while in Sri Lanka: the PLOTE did not personally target the applicant after his brother’s
disappearance, and they would not do so upon his return.
[20]
The Board assessed the
applicant’s sur place claim - that he would require protection based on
events which occurred after he left Sri Lanka and in particular based on his
travel on the Sun Sea - and again noted that he had no
LTTE involvement nor was he suspected of having LTTE connections. Therefore, a
connection with the LTTE would not be presumed simply because the applicant was
a passenger on the MV Sun Sea.
[21]
The Board also found that
the applicant is not a member of a particular social group under the Convention
by virtue of being a passenger on the MV Sun Sea. The Board referred to
recent Federal Court jurisprudence rejecting the proposition that the ground is
related to “simply being one of the nearly 500 on the ship”.
The Issues
[22]
The applicant submits that
the Board misconstrued the basis of his claim and, as a result, made arbitrary
and erroneous adverse credibility findings. Further, the Board erred in its
assessment of his sur place claim and failed to conduct a mixed motives
analysis.
[23]
The applicant also submits
that he was denied procedural fairness because the Board did not render its
decision for 14 months and relied on jurisprudence that postdates the hearing
without providing an opportunity for either party to make submissions on that
jurisprudence.
Standard of review
[24]
The
standard of review for the Board’s assessment of credibility and findings of
risk and for the sur place claim is that of reasonableness.
[25]
The role of the Court on
judicial review, where the standard of reasonableness applies, is to determine
whether the Board’s decision “falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at
para 47). There may be several reasonable outcomes and “as long as the process
and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to a reviewing court to
substitute its own view of a preferable outcome” (Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at para 59).
[26]
Whether the applicant was
denied procedural fairness, however, attracts the standard of correctness.
Did the Board misconstrue the applicant’s claim
and make erroneous findings of fact?
[27]
Although the Board found
parts of the applicant’s story to be credible, including that his father had
been killed, his brother had disappeared or been abducted, and his mother had
been detained, the Board also found that the applicant’s claim lacked
credibility in critical respects.
[28]
The applicant submits that
the Board’s credibility findings are unreasonable because it misconstrued the
basis for his claim, which was based on the threats made to his mother. The
applicant, therefore, argues that the Board could not reasonably make adverse
credibility findings based on the fact that threats to the applicant were not
carried out.
[29]
There is no doubt that the
Board properly understood the applicant’s claim. It is clear that the applicant
asserted a risk to himself personally in his Personal Information Form [PIF]
narrative, his testimony and again in the post hearing written submissions.
The Board accurately identified that the primary basis of the applicant’s claim
was that the SLA and/or the PLOTE were searching for him before he left Sri Lanka.
[30]
The applicant claimed that
his mother was intimidated and threatened for reporting and inquiring into her
son’s disappearance and that threats were made to her that the applicant, her
son, would be harmed. Because the applicant’s mother refused to give up her
search, the authorities came to the house in June 2009 until he left Sri Lanka in November 2009 to search for the applicant. The applicant’s PIF narrative
indicates his fear; “it was only a matter of time before they came for me”.
[31]
The post hearing submissions
specifically refer to the applicant’s subjective fear and state that in June 2009
his life was threatened when the Sri Lankan army and paramilitary groups asked
his mother for him and threatened that they could take him. In addition, in
November 2009, his life was threatened when the Sri Lankan army attended his
house and told his mother that “if we see your younger son, we’ll kill him.”
[32]
With respect to the Board’s
findings of credibility, it is appropriate for the Board to find some evidence
credible and other evidence not credible.
[33]
The Board identified the
aspects of the applicant’s claim that it did not find credible and provided the
reasons for its adverse findings. The Board noted that if the authorities were
really looking for the applicant, they could have gone to his school or waylaid
him en route to and from school which was very close to his home. In addition,
if the authorities had detained him in custody in August 2009 it would be
unusual for them to let him go after only one night. Finally, the fact that the
applicant freely obtained a genuine passport, travelled to Colombo and obtained
a visa and flew to Thailand is not consistent with him being under the watch of
the authorities.
[34]
Boards and tribunals are ideally placed to
assess the credibility of refugee claimants: see Aguebor
v Canada (Minister of Employment and Immigration)
(1993), 160 NR 315, [1993] FCJ No 732 at para 4; and their findings should be
given significant deference: Lin v Canada (Minister of Citizenship and
Immigration), 2008 FC 1052,
[2008] FCJ No 1329 at para 13.
[35]
As noted by Justice Martineau in RKL v Canada (Minister of Citizenship and Immigration), 2003 FCT 116, [2003]
FCJ No 162 at para 7:
The determination of
an applicant's credibility is the heartland of the Board's jurisdiction. This
Court has found that the Board has well-established expertise in the
determination of questions of fact, particularly in the evaluation of the
credibility and the subjective fear
of persecution of an
applicant: see Rahaman v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 1800 at para 38 (QL) (T.D.); and Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 at
para 14.
[36]
The Board noted that the
onus is at all times on the applicant to establish his claim with credible and
trustworthy evidence. The Board reasonably drew a negative inference from the
applicant’s failure to provide corroborating evidence from his mother regarding
the allegation that the SLA was looking for the applicant in June 2009,
particularly when the applicant had been in contact with his mother to provide
other documents.
[37]
In Chen v Canada
(Minister of Citizenship and Immigration), 2012 FC 95, [2012] FCJ No 101 at
para 39, Justice Scott stated that “[t]he jurisprudence holds that where a
claimant’s story is found to be flawed because of credibility findings, the
lack of corroboration is a valid consideration for the purposes of further
assessing credibility”.
[38]
In the present case, the
Board found that the applicant failed to credibly establish that he was being
sought by authorities, and reasonably found that he would not face a serious
risk of persecution or probable harm or danger if he returns to Sri Lanka.
Did the Board err in its assessment of the sur place claim?
[39]
The applicant submits that
the Board failed to consider that his presence on a suspected LLTE ship would
result in him being suspected or perceived as having an association with the
LTTE, and also failed to consider this combined with other risk factors,
including that his family had been targeted for their alleged LTTE connections,
for their cumulative effect.
[40]
The applicant also argues
that the Board failed to conduct a mixed motives analysis of his claim. The
applicant submits that the Board restricted its analysis to his membership in a
particular social group without considering his ethnicity, his travel on the MV
Sun Sea and his perceived political opinion.
[41]
The Board commented on the
applicant’s allegation noting, “While, perhaps, not appreciating the
ramifications of the concession in terms of the provisions of section 97, even
his counsel has stated ‘The claimant faces a generalized risk because he is a
young Tamil male, born and resident of Northern Province, and a passenger on
the MV Sun Sea’”. Despite the likely inadvertent “concession”, the Board was
clearly aware of the several bases for the applicant’s claim and considered
them individually and cumulatively.
[42]
The applicant also submits
that the Board ignored recent Federal Court jurisprudence which has held that
being on the MV Sun Sea can result in a perceived political opinion,
thereby exposing passengers to risk. The applicant referred to Canada
(Minister of Citizenship and Immigration) v B134, B130, B133, B131 and B132,
IMM-8010-12 (order dated
April 8, 2013); Canada (Minister of Citizenship and Immigration) v B420,
2013 FC 321, [2013] FCJ No 396 (March 28, 2013); Canada (Minister
of Citizenship and Immigration) v A032, 2013 FC 322, [2013] FCJ No
399 (also March 28, 2013); Canada (Minister of Citizenship and
Immigration) v B344, 2013 FC 447, [2013] FCJ No 547 (May 8, 2013 ).
[43]
All these decisions were
rendered by this Court after the Board rendered its decision with respect to
the applicant. I note this only because the applicant submits that he was
denied procedural fairness on the basis that the Board relied on decisions
which were rendered after the date of his hearing. This issue is addressed
later in these reasons.
[44]
In the cases cited by the
applicant, the Court considered whether the Board’s determinations that the
respective applicants had a perceived political opinion were reasonable. Each
case is based on its own facts and similar facts can result in different
outcomes which may or may not be found to be reasonable upon judicial review.
The issue before the Board in this case was whether this applicant would
be perceived as having ties to the LTTE and, as a result, a perceived political
opinion and the Board found that he would not. The issue for this Court is
whether this is a reasonable finding.
[45]
The applicant made several
submissions in this application for judicial review that appear to be somewhat
contradictory.
[46]
The applicant submits that
his sur place claim was not based on membership in a particular social
group and is critical of the Board for referring to his submission that the
mere fact he was part of the “contingent” would be sufficient to lead to his
persecution and “because of that passage on the ship, he is a member of a
particular social group for the purposes of Convention refugee determination”.
The Board noted that this proposition had been rejected in Canada (Minister of Citizenship and Immigration) v B380, 2012 FC 1334,
421 FTR 138 [B380].
[47]
The applicant cannot now
argue that he did not base his claim on membership in a particular social
group. Although he did not assert this as the sole basis for his sur place
claim, his post hearing submissions are clear “The claimant has a well-founded
fear of persecution for reasons of race, nationality and membership in a
particular social group, i.e., a Young Tamil Male from the Northern Province,
and an MC Sun Sea migrant.” A subsequent reference at page 9 of the
post hearing submissions restates his grounds for refugee protection as race,
nationality, political opinion, and membership in a particular social group.
[48]
The Board did not err in
referring to this ground and in pointing to the jurisprudence that has settled
that being a passenger on the MV Sun Sea is not a sufficient basis for
membership in a particular social group.
[49]
The Board also found that
failed asylum seekers will not be presumed to have LTTE connections upon their
return to Sri Lanka on the basis that they were on the MV Sun Sea
alone. Rather, LTTE connections could be based on being a passenger on the MV
Sun Sea for those that the government has concluded have LTTE
connections.
[50]
Reading the decision as a
whole, which cites the relevant decisions such as MCI v B380, it is
clear that the Board did not consider the applicant’s claim solely or even
primarily on the basis of membership in a particular social group. The Board
rejected the applicant’s claim on the basis that a Tamil male from the North
who sailed on the MV Sun Sea would only be at risk if he were suspected
of having ties to the LLTE.
[51]
In addition, the applicant’s
submission that the Board erred in considering cases decided after the hearing
(which is discussed below), including PM v Canada (Minister of Citizenship
and Immigration), 2013 FC 77, [2013] FCJ No 136 [PM] and SK v
Canada (Minister of Citizenship and Immigration), 2013 FC 78, [2013]
FCJ No 137 [SK] —which highlight that an individual assessment is
required—appears to be at odds with the applicant’s submission that his
particular risks and mixed motives should have been assessed. This is exactly
what PM and SK support and what the Board acknowledged was
needed. In PM and SK Justice Snider found the Board’s determination to
be reasonable following its individualised assessment of whether the particular
applicant faced a risk due to perceived links to the LTTE. Justice Snider, in
fact, reiterated the long- standing principle that it is the risk to the
particular applicant that must be assessed.
[52]
The Board thoroughly
considered the particular applicant’s risk profile in assessing his sur
place claim. This included consideration of the risks he faced before he
left Sri Lanka and then moved on to consider the risks he would face based on
events which occurred after he left, including being a passenger on the MV
Sun Sea.
[53]
The Board painstakingly
reviewed all of the applicant’s history in Sri Lanka, including the murder of his
father, stepfather, abduction of his brother and his mother’s detention, search
for his brother and the resulting threats and considered that he was a young
male Tamil from the North. The Board concluded that there was no reliable
evidence that he was ever involved with or bothered by the LTTE when he lived
there, nor did he have any involvement with the SLA, the Criminal Investigation
Department of the police, the Eelam People’s Democratic Party or
paramilitaries. The Board also found that the applicant had failed to credibly
establish that the PLOTE ever looked for him to do him harm.
[54]
The Board found that failed
asylum seekers that have a connection to the LTTE and those that leave the
country illegally, which leads to the view that they must be LTTE sympathizers,
could potentially be at risk of detention and mistreatment. The Board found
that the applicant had no real or suspected ties to the LTTE when he was in Sri Lanka, he was of no interest to the authorities and he left legally. The Board noted that
upon return to Sri Lanka, the applicant would likely be questioned and, if it
is revealed he was on the MV Sun Sea, he would be questioned about the
ship but that “he knew virtually nothing”.
[55]
Although the former UNHCR
Guidelines from April 2009 had concluded that young male Tamils would be at
risk, this is no longer the situation. The 2010 Guidelines, which are meant to
supersede the 2009 Guidelines and which the Board referred to, clarify that
there are particular risk profiles, including having suspected ties to the
LTTE. The earlier guidelines were an exception to the principle that an
individual assessment is necessary and this exception no longer applies.
[56]
The Board summarised its
assessment of the applicant’s particular circumstances: he would not have any
knowledge about the LTTE, he had no connection to the LTTE, and his return
would not expose him to a risk of persecution or a need for protection.
[57]
The Board’s decision shows
that it considered the applicant’s identity as a young Tamil male from the
North who was a passenger on the MV Sun Sea. The sur place
analysis demonstrates that the Member considered, but dismissed, the precise
claim that the applicant submits is at the base of his mixed motives claim; the
applicant does not face a risk as a young Tamil male, born and resident of
Northern Province, and passenger on the MV Sun Sea, because he is not
suspected of having connections to the Tamil cause.
Did the delay between the hearing and decision
constitute a breach of procedural fairness?
[58]
The applicant submits that
the Board delayed in rendering its decision for over a year, and selectively
relied on cases decided by the Federal Court after the hearing. The applicant
submits that he was denied a full and fair hearing because he was unable to
address these decisions, particularly the decisions regarding social group,
mixed motives and political opinion which were central to his claim.
[59]
The applicant also submits
that the delay has prejudiced him because he cannot now apply for a Pre-removal
Risk Assessment [PRRA] due to changes in the Act since his application
was heard.
[60]
The respondent submits that
the Board did not err in relying on recent Federal Court jurisprudence, and
must do so as these decisions give guidance to the Board. Moreover, the
applicant could have provided additional post-hearing submissions to address
the impact of any decisions that had a bearing on his claim.
[61]
The respondent also notes
that procedural fairness has never entitled the applicant to two independent
risk assessments by both the Board and the PRRA officer.
Delay alone does not result in a breach of
procedural fairness
[62]
I do not find that there was
any breach of procedural fairness due to the Board’s delay or due to its
consideration of jurisprudence which arose after the applicant’s hearing.
[63]
The Board’s decision is
thorough and addresses the extensive record of over 900 pages of documents.
[64]
The applicant suggested that
there should be a time limit for the release of decisions of the Board.
However, there is no such statutory requirement applicable. Some decisions will
take longer than others due to a range of circumstances.
[65]
The applicant relied on the
decision of the Supreme Court of Canada in Blencoe v British Columbia
(Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at
para 102 [Blencoe] which held that a delay in the processing of an
administrative proceeding may affect the duty of fairness and the principles of
natural justice if it impairs the ability of the party to answer the case
against him. That case dealt with a delay in scheduling a hearing for 30
months. Moreover, the Court did not find that there was an abuse of process to
warrant a stay of those proceedings. The Court also noted that some prejudice
to the applicant would be required to justify a finding of a breach of the duty
of fairness. The Court held that there was no constitutional right outside of
the criminal context to be tried in a reasonable time. The Court noted that the
allegations of sexual harassment were serious but the delay without actual
prejudice did not warrant a stay of the proceedings.
[66]
There is a great deal of
jurisprudence dealing with judicial review of Board decisions made with respect
to refugee claimants who were passengers on the MV Sun Sea. Counsel is
justified in noting some earlier decisions that upheld determinations of the
Board which found that being a passenger on the ship was sufficient to base a
claim for protection or that being a passenger was equated with membership in a
particular social group and that this membership provided the required nexus.
However, despite what appear to be different approaches to similar situations,
no two claims are the same. The role of the Court is to consider the
reasonableness of the Board’s decision, not to impose its own determination.
[67]
As noted by Justice Snider
in PM:
[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.
[68]
With respect to the
submission that the Board should not have considered the jurisprudence after
the date of the hearing, the respondent notes that the Federal Court of Appeal
addressed this issue in Liyanagamage
v Canada (Minister of Citizenship and Immigration), (1994) 176 NR 4, [1994] FCJ No 1637 [Liyanagamage]. That case is
often cited for the criteria for the Court to certify a question rather than
for the question that it answered. The certified question in that case was
whether there is a duty on the Board to reopen the hearing to provide parties
an opportunity to make submissions where the board is relying on a Superior
Court decision rendered after the close of the hearing. The Court answered in
the negative, noting that it had decided the issue previously in Canada (AG) v Levac, [1992] 3 FC 463, [1992] FCJ No 618 (CA) [Levac].
In Levac, the Court found that there was no duty to do so, although it
may be prudent in some situations. The Court also found, on the facts of that
case, that the decision in question did not amount to a fundamental change in
the law. In Liyanagamage, the Court also found that the decision at
issue rendered after the Board’s hearing did not fundamentally change the law.
[69]
The applicant provided a
recent example from another refugee application where the Board invited both
parties to make post-hearing submissions on the impact of the recent Supreme
Court of Canada decision in Ezokola v Canada (Citizenship and Immigration),
2013 SCC 40, [2013] SCJ No 40 [Ezokola] suggesting that the same should
have been done in the present case. In my view, the sample letter demonstrates
the discretion the Board may exercise to invite submissions where a recent
decision marks a significant or fundamental change in the law and where it
would have a bearing on the issues to be determined by the Board. In Ezokola
the Supreme Court of Canada set out how complicity in crimes against humanity under article 1F(a) of the United Nations Convention Relating to
the Status of Refugees should be understood. It is a significant decision.
[70]
In the present case, the
jurisprudence relied on by the Board that arose after the hearing did not
change the basis of the applicant’s claim for refugee protection, of which the
Board assessed each element.
[71]
The Board referred to B380
(decided November 19, 2012) which rejected the proposition that being a
passenger on the MV Sun Sea constitutes membership in a particular
social group under the Convention. The Board also referred to Canada (Minister of Citizenship and Immigration) v B472, 2013 FC 151, [2013] FCJ No
192 (February 25, 2013) and Canada (Minister of Citizenship and
Immigration) v B323, 2013 FC 190, [2013] FCJ No 193 (February 25, 2013)
which both followed B380.
[72]
The Board also noted the two
“mirror” decisions from January 2013, PM (January 25, 2013) and SK
(January 25, 2013), where Justice Snider reiterated the fundamental principle
that claims of those seeking refugee status must be assessed individually. This
is not a new principle. However, in the past, an exception had emerged with
respect to young male Tamils from the North who were presumed to be in need of
protection. This is no longer the case..
[73]
The applicant wanted his
assessment to be individualised and wanted a mixed motives analysis to be
undertaken – as he raised race, ethnicity, passage on the MV Sun Sea and
perceived political opinion due to his family history in support of his claim.
[74]
As noted above, the
applicant now argues that his claim is not based on membership in a particular
social group. Therefore, giving notice to the parties that the Board would
rely on these cases would have only given an additional opportunity to the
applicant to highlight the other bases of his claim. The Board’s decision demonstrates
that it considered all the bases of the applicant’s claim. Therefore, the
applicant was not prejudiced in any way. The grounds for his claim did not
change as a result of the more recent cases.
[75]
In my view, it is not in the
applicant’s interest to argue that he was prejudiced by the Board considering the
above-noted jurisprudence. The Board noted the 2010 Guidelines and the possible
risk profiles and determined that the only possible category the applicant may
fit would be those suspected of links to the LTTE. The Board conducted the
individualised assessment of his risk profile just as the applicant submits is
required, noting “The question is, is this Tamil claimant ‘a person suspected
of links to the LTTE?’ My ultimate conclusion is that he is not.”
[76]
From a practical
perspective, the Board cannot ignore recent jurisprudence and conclude that the
applicant’s mere presence on the MV Sun Sea constituted a risk of
persecution in the face of country condition evidence that this was not the
case and the case law which determined that passage on the MV Sun Sea
did not constitute membership in a particular social group. To do so would be
an error and would invite judicial review.
Impact of delay on PRRA is not a breach of
procedural fairness
[77]
In addition, I agree with
the respondent that the delay did not breach the applicant’s right to
procedural fairness as a result of the changes in section 112 of the Act
and the restrictions on Pre-removal Risk Assessment [PRRA]. As the respondent
submits, in Toth v Canada (Minister of Public Safety and Emergency
Preparedness), 2012 FC 1051, 417 FTR 279, Justice Zinn found the amendment
to be valid. Although the applicant would now have to wait until March 2014 to
be eligible for a PRRA, he has had a recent risk assessment by the Board.
Should he be removed, the applicant may seek a deferral of removal and assert
any new risks he faces at that time and, if refused, may seek judicial review
of that decision and a stay of removal pending judicial review, both of which would
provide an opportunity to raise any new risks he would face upon return.
Proposed Certified Question
[78]
The applicant proposed the
following question for certification:
“Does it amount to a breach of procedural
fairness if the Board relies on court decisions rendered after hearing (while
the Board’s decision is on reserve) without giving the parties an opportunity
to make submissions on those cases?”
[79]
The respondent helpfully
noted that the issue had been addressed by the Federal Court of Appeal in Liyanagamage.
The applicant does not agree and submits that in Liyanagamage the Court
left it to the discretion of the Board whether to invite submissions with
respect to more recent case law.
[80]
While I agree that the Board
could invite submissions, the Court of Appeal answered that it was not required
to do so. The question posed by the applicant has been answered in the negative
by the Court of Appeal.
[81]
The applicant has also
proposed an alternative question:
“Will
a delay of over a year in the delivery of a reserved decision by the Refugee
Protection Division constitute a breach of procedural fairness?”
[82]
The proposed question for
certification does not meet the test established by the Federal Court of Appeal
in Liyanagamage that the question must be one which transcends the
interest of the immediate parties to the litigation and contemplates issues of
broad significance of general application and must be determinative of the
appeal.
[83]
Or, as stated more simply in
other cases, in order to be a certified question the question must be a serious
question of general importance which would be dispositive of the appeal.
[84]
The question proposed by the
applicant is particular to the facts of the case from his perspective and is a
very narrow question with a precise time frame that seeks a yes or no answer
despite the range of factors that would be relevant in assessing a breach of
procedural fairness. Whether a delay may constitute a breach of procedural
fairness will depend on the circumstances of the case, as noted by the Supreme
Court of Canada in Blencoe.
[85]
I have found that there was
no breach of procedural fairness in this case, and the specific length of the
delay was not the determinative factor in that finding.
[86]
The application for judicial
review is dismissed.
Email this Content