Docket: IMM-4953-13
Citation:
2014 FC 1258
Ottawa, Ontario, December 29,
2014
PRESENT: The Honourable Madam Justice Simpson
|
BETWEEN:
|
|
UMATHARAN CINNATHAMBY
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
ORDER AND REASONS
(Oral Reasons delivered in Toronto on November 19, 2014)
[1]
Umatharan Cinnathamby, [the Applicant], applies
for judicial review of a negative decision of the Refugee Protection Division
of the Immigration and Refugee Board [the Board] dated July 8, 2013 [the
Decision]. This application was made pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the IRPA].
[2]
The Applicant is now a twenty six year old Tamil
citizen of Sri Lanka who lived with his family in Jaffna during and immediately
after the civil war. He fled Sri Lanka because he fears the Sri Lankan army,
the police, the Eelam People’s Democratic Party [EPDP] and the Karuna Group.
The Decision
[3]
The Board looked at the Applicant’s four
detentions. It found that the first three occurred during and just after the
civil war, and that the fourth one was the result of a general round up in
which the Applicant was caught. One detention lasted three days. The others lasted
less than one day. The Applicant was beaten twice but was always released at
the insistence of his father or his employer. The Applicant testified that he
was never detained because of suspected ties to the Liberation Tigers of Tamil
Eelam [the LTTE]. The Applicant also testified that he was able to move through
checkpoints and that he left Sri Lanka without difficulty using his own
passport.
[4]
Based on this evidence, the Board concluded that
the Applicant was never suspected by either the police or the army of having
LTTE ties. The Board noted that under the UNHCR 2013 Guidelines, the Applicant
did not fit the profile of a young Tamil male at risk of persecution. The Board
also acknowledged that, although the Applicant and his parents faced a risk of
extortion by the EPDP and perhaps by the Karuna Group, it was a generalized
risk. The Board found that there was no evidence that the Applicant faced a
risk of persecution for his perceived political opinion, and the Board
concluded that the documentary evidence did not indicate that the Applicant
faced a risk of persecution as a failed asylum seeker.
The Issues
[5]
The Applicant alleges that there are four errors
that make the Decision unreasonable. I will deal with them in turn.
i.
Incorrect Tests for Persecution
[6]
The Applicant submits that the Decision shows
that the Board required the Applicant:
•
to demonstrate an enhanced risk of persecution;
and
•
to show that he was being pursued; and
•
to demonstrate that the situation for him in Sri Lanka had not improved.
[7]
However, the test for persecution is properly
described by the Board in paragraphs 24 and 27 of the Decision and, in my view,
a fair reading of the Decision as a whole shows that the Board did not
establish incorrect tests.
ii.
The Board Ignored Relevant Evidence
[8]
The Applicant suggested that evidence was
ignored which was compelling and directly contradicted the Board’s conclusions.
However, I found no such evidence.
iii.
The Board Reached a Simplistic Conclusion
[9]
The Applicant alleges that the Board reached a
simplistic conclusion because it relied on the fact that the Applicant was
released after detention and allowed to leave Sri Lanka, as the basis of its
finding of “no risk”.
[10]
However, in my view, this is not a fair
portrayal of the Decision. In each case, the reason for the Applicant’s release
from detention was analysed and in all cases, either the Applicant’s father or
his employer was involved. The Board also found that the Applicant was free to
move about. He was a very young Tamil male at the relevant time. His detentions
were brief and few in number and he was never linked to the LTTE. Given the
Board’s attention to these facts, I am unable to conclude that its Decision was
simplistic.
iv.
A Failure to Consider the Claims Cumulatively
[11]
The Board found no evidence to suggest that the
Applicant has actual or perceived ties to the LTTE and the Board concluded that
he is not at risk either as a Tamil or as a failed asylum seeker. That being
the case, in my view, there was nothing to be gained by considering those
claims together.
Certification for Appeal
[12]
No question was posed for certification.
Email this Content