Docket:
IMM-10162-12
Citation: 2013 FC 944
Ottawa, Ontario, September
12, 2013
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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BASKARAN BALAKRISHNAN
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review
subsequent to an August 30, 2012 decision from the Immigration and Refugee
Board [IRB], Refugee Protection Division [RPD], which concluded that the
Applicant is not a Convention refugee or a person in need of protection.
[2]
The Applicant, a thirty year old Tamil, from Sri
Lanka, arrived in Canada aboard the MV Sun Sea and claimed refugee status on
the basis of two incidents, at two separate times, separated by a two year
span, one in 2005 and the other in 2007.
[3]
Due to country conditions in Sri Lanka in 2009,
the Applicant was granted United Nations High Commission for Refugees [UNHCR]
refugee status which had expired a year later. No “sur place” claim was
considered valid as the evidence did not point in such direction.
[4]
Neither his alleged fear of the Sri Lankan army,
nor that of any other enforcement entity, whether it be, police, paramilitary
in nature or that of the Karuna and Eelam People’s Democratic Party [EPDP] were
considered to be targeting the Applicant.
[5]
The two incidents from which the Applicant
allegedly extricated himself were not considered credible; and, his alleged
subjective fear, when analyzed in view of the objective surrounding
circumstances, was concluded as invalid as borne out by the objective evidence
and lack of personal corroboration on the Applicant’s part.
[6]
As per its specialized knowledge, the IRB
considered that, since 2010, the UNHCR, itself, does not consider young Tamils
from northern Sri Lanka eligible for refugee status unless their particular,
respective, situations warrant such findings.
[7]
The Applicant, not viewed by the IRB as
personally targeted, was refused by the IRB due to inherent contradictions
between his oral testimony and his written narrative, especially in respect of
who, it is that he, in fact, fears and why (Reference is made to R v RDS,
[1997] 3 S.C.R. 484 at para 29).
[8]
The finding of the IRB from documentation,
culled from the Australian Department of Immigration and Citizenship, the
United Kingdom, British Immigration Agency and, in addition, to the UNHCR,
concluded the region to have undergone positive improvements. Refugees and
returnees were considered to be able to work; thus, to interact, with local
police forces in an atmosphere that pointed to marked improvements to living
conditions of the local population (Exhibit M-4, item 18, “Area Trip Report
(Trincomalee and Batticaloa), High Commission of Canada, Colombo, 28 - 31 March
2011”), this, due to the state of emergency having been lifted by the Sri
Lankan government in the same year. Even Amnesty International has on record
that, as of October 2011, “[p]eople alleged to be involved with the [Liberation
Tigers of Tamil Eelam] LTTE are rarely brought to trial. Most of these
detainees are eventually released for lack of evidence”. For those who are
targeted as LTTE members, a concern does remain, in that they are kept in
“prolonged administrative detention to circumvent ordinary procedures” (Exhibit
M-4, item 45, Amnesty International – Sri Lanka: Briefing Committee Against
Torture, October 2011); however, that is not considered the case of the
Applicant in view of his specific evidence.
[9]
The IRB also recognized that reports do signal
that Sri Lanka is still reluctant to acknowledge serious human rights
violations that it did incur in the final phase of the war to those directly
targeted; nevertheless, the objective evidence points to the Lessons Learnt and
Reconciliation Committee [LLRC] which has accepted the implication of the
Security Forces for “resulting death and casualties to civilians”. That
recognition is of late a tacit acknowledgement of the perpetration of “human
rights violations by state forces” (Exhibit R/A-3, item 2.6, International
Crisis Group, December 22, 2011, “Statement on the Report of Sri Lanka’s
Lessons Learnt and Reconciliation Commission”).
[10]
It was also noted that in 2011, the UNHCR,
itself, has assisted Sri Lankans to voluntarily return from India, Malaysia,
Georgia and St. Lucia. Integration is an ongoing process which bears
significant difficulties for those who were former LTTE operators which, per
the evidence, is not the case of the Applicant.
[11]
Canadian officials have also reported that Sri
Lankan returnees, although interviewed upon arrival at the airport, were
released (Exhibit M-4 – Vol 3, item 3 Colombo MIU – Monitoring of Sri Lankan
National Irregular Migrants returned to Sri Lanka under the
Canada/International Organization for Migration, February 18, 2012).
[12]
As the IRB did not conclude the Applicant to be
a LTTE member, nor even a supporter, his return, per its decision, was not
viewed as problematic in the Applicant’s particular case.
[13]
The IRB reviewed the objective evidence, as per
its decision, carefully; a very balanced reading of the objective evidence is
witnessed by this Court; and, the IRB has done the same in regard to the
personal evidence submitted by the Applicant.
[14]
The findings of the IRB are clear, in addition
to being reasonable, and are based on the inherent evidence on the record
before this Court.
[15]
For all of the above reasons, the application
for judicial review is dismissed.
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