Docket:
IMM-1156-13
Citation: 2014 FC 160
Toronto, Ontario, February 20, 2014
PRESENT: The Honourable Mr. Justice Zinn
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BETWEEN:
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ALEXANDER GABRIEL PILLAY
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Alexander Gabriel Pillay is a 56 year old citizen of Sri Lanka of
Tamil ethnicity. He is married and has three sons: one in the USA, one in Germany, and one in Sri Lanka. He arrived in Canada aboard the MV Sun Sea on August 13,
2010. His claim for refugee protection was denied by the Refugee
Protection Division of the Immigration and Refugee Board of Canada [RPD].
[2]
In my view, the RPD reasonably concluded that
the Applicant was not credible. He could not credibly identify the people who
abducted him or the people who came looking for him following his abduction.
Therefore, it is not clear that these people (if they tortured the Applicant)
were associated with the government in any way. The extortion attempts fit
squarely within the criminal types of extortion described in the documentary
evidence that the general Sri Lankan population faces. There is also no
credible evidence to support a claim that the Applicant would face torture if
returned to Sri Lanka.
[3]
I am also not convinced that the RPD failed to consider
the cumulative effects of the various incidents the Applicant claimed, that
would lead to a finding of a fear of persecution. He cites Munderere v Canada, 2008 FCA 84, to support that it is an error for the RPD to not consider the
cumulative effects of incidents leading to a fear of persecution. It is true
that the RPD, in conducting its analysis, must consider the cumulative effect
of all of the alleged incidents. However, in that case, the Federal Court of Appeal
at paragraph 51 states that: “Although it is correct that neither the Board nor
the Judge squarely addressed this issue, I am satisfied that the Board's
silence does not constitute a reviewable error, given that the respondents
cannot show that the grenade incident was linked to a Convention ground”
(emphasis added). These comments are on all fours with this case.
[4]
Although the RPD did not conduct an explicit review of
the cumulative effects of the incidents, the Applicant did not discharge the
onus on him of showing a nexus to a Convention ground. There is simply no
evidence of persecution for any of the alleged incidents. There can be no
cumulative effect leading to a fear of persecution on the basis of a
Convention ground if none of the incidents constitute persecution on that
basis.
[5]
The Applicant’s claims under section 96 and 97, with one exception, failed
based on the credibility determination which was transparent and justified.
[6]
However, I have determined that the application
for judicial review must be allowed on the basis of the assessment by the RPD
of the Applicant’s sur place claim. The RPD did not address evidence
that directly contradicted its findings, and it was obligated to consider
whether the combination of the Applicant’s race and his having been aboard the MV
Sun Sea were sufficient on their own to subject him to a risk of persecution
based on a Convention ground, independent of his history with the authorities.
[7]
This Court has held that despite adverse credibility findings, and
despite a lack of history of prior association with the LTTE, the combination
of being Tamil and having been aboard the MV Sun Sea may be sufficient to show
a serious possibility of persecution as a result of a Convention ground. This
is known as the “mixed motives” doctrine.
[8]
In Canada v B344, 2013 FC 447 [B344], Justice Noël upheld
the RPD’s decision that the applicant had a valid sur place claim on the
basis of the combination of his Tamil ethnicity and his being a passenger on
the MV Sun Sea. The RPD found that the evidence showed that: (1) the Sri
Lankan authorities perceived the Sun Sea to be part of an LTTE-administered
trafficking operation regardless of the Applicant’s previous lack of
association with the LTTE; (2) Tamils suffered systemic discrimination in Sri
Lanka by the government; and (3) the government sometimes used torture and
abusive force against suspected terrorists or those who may have information
about terrorists. Justice Noël stated:
The mixed motives approach to a finding
related to section 96 of the IRPA is not new. The Federal Court of Appeal has
been recognizing the validity of this type of analysis for more than 20 years.
Indeed, in both Salibian v Canada (Minister of Employment and Immigration)
(1990), 11 Imm LR (2d) 165 at paras 17-19, 73 DLR (4th) 551 (FCA), Décary JA
and Veeravagu, above, the Federal Court of Appeal recognized that race can be a
"causal factor" when an individual is at risk to suffer persecution
at the hands of state agents and that this causal factor, considered along
with other motivations can establish a serious possibility of persecution:
In our view, it is obvious beyond any need
of demonstration that if a person faces "real and oppressive" risks,
including a risk of "substantial violence," from state sponsored
sources (the IPKF) because he or she belongs to a group one of whose defining
characteristics is race, (young Tamil males), it is simply impossible to say
that such person does not have an objective fear of persecution for reasons of
race.
(See Veeravagu, above at 2.)
It is not a question of whether the
persecution can be connected to a Convention ground but rather an issue of
whether a ground such as race can be a contributing or causal factor.
(emphasis added)
[9]
Therefore, while neither being a passenger on the MV Sun Sea ship nor
being Tamil alone is sufficient on the evidence to show a nexus to a Convention
ground, when combined, there may be a serious possibility of persecution.
[10]
In this case, the RPD indirectly evaluated the mixed motives doctrine
when it said that “[d]espite having lived in the north [that is to say, despite
being Tamil] he has never been arrested or detained by the SLA or police.”
However, it came to this conclusion without having any regard to evidence that
the combination of being Tamil and having been aboard the MV Sun Sea may
be sufficient to garner suspicion from the Sri Lankan authorities.
[11]
Some of the evidence ignored by the RPD includes the following statement
from the Amnesty International Report on Country Conditions in Sri Lanka dated June 16, 2011: “Tamils… but particularly young Tamil men from Northern or Eastern Sri Lanka… have been disproportionately subject to arrest and detention based
solely on their ethnicity. Anyone suspected of affiliation with the
LTTE is a likely target of abuse” (emphasis added). Amnesty International
also reports that “[m]any are arrested and detained on suspicion of links to
the LTTE pending investigation and interrogation by Sri Lanka’s intelligence
and security forces” and that “some detainees report being tortured and beaten
by military personnel and paramilitary cadres working with government forces,
such as the army and navy; by police, by inmates and by prison guards.”
[12]
Further, while the RPD relies on the portion of document LKA.103815.E which
states that there have been only four cases of persons being detained upon
arrival and that these cases involved outstanding criminal charges, the same
document goes on to say that Human Rights Watch has “noted that its research
‘shows that Sri Lankan authorities have frequently violated the basic rights of
people suspected of being affiliated with or supporters of the LTTE’.” The
same document also states that “[r]eturnees are also viewed with
‘suspicion,’ and are generally seen as ‘traitors,’ ‘those who brought the
country to disrepute’ [and] ‘…lied about the situation in the country abroad.’”
(emphasis added).
[13]
Finally, an Amnesty International report titled “Concerns with respect
to forced returns to Sri Lanka for passengers of the Ocean Lady and MV Sun Sea”
states that: “The Sri Lankan Ministry of Defence has accused the passengers on
by [sic] the MV Sun Sea and Ocean Lady of having links to the LTTE
suggesting passengers included leaders, members and their families,” that those
who are detained were interrogated and that such interrogations “focused on
this association [with the LTTE]; on forcing a confession to LTTE connections
or activities; and/or on gaining information about others associated with the
LTTE….”
[14]
These documents support the following set of facts in support a sur
place claim:
1.
Tamils are subject to discrimination by the
state;
2.
Returnees are regarded with suspicion;
3.
Those suspected of being connected with the LTTE
are subject to detention, interrogation, and torture by the state; and
4.
The Sri Lankan government perceives the MV Sun
Sea as being linked to the LTTE.
[15]
The Applicant is a returnee who is a Tamil and was aboard the MV Sun Sea. It could be inferred that he would be at risk of
persecution as a result of these factors.
[16]
That is not to say that all Tamils who were aboard the MV
Sun Sea will automatically succeed on a sur place claim under
section 96. In fact, I agree with the RPD that the Applicant does not have any
prior association with the LTTE and it appears that the government has not
previously suspected him of any connection to the LTTE.
[17]
However, in light of the decision in B344, the RPD had to at
least turn its mind to the possibility that the Applicant would face a serious
possibility of persecution on a combination of his race and the fact that he
was on the MV Sun Sea, and directly address the
evidence that spoke to that possibility.
[18]
By focusing only on the passages in the evidence that indicate that
returnees have generally been reported to have not been mistreated and that
only four were detained, it ignored passages in the evidence that suggest that
most returnees are regarded with suspicion, that the government associates the
Sun Sea with the LTTE, that Sri Lankan authorities have frequently violated
basic rights of people suspected of being affiliated with the LTTE, and that
Tamils are disproportionately subject to arrest and detention. And for that
reason, its decision must be set aside.
[19]
No question for certification was proposed.
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