Docket:
IMM-13174-12
Citation: 2014 FC 162
Ottawa, Ontario, February 20, 2014
PRESENT: The Honourable Mr. Justice Annis
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BETWEEN:
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MAYOORAN SIVARATHTHINAM
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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
INTRODUCTION
[1]
This is an application under section 18.1 of the
Federal Courts Act, RSC, 1985, c F-7, for
judicial review of the decision of a Member (the “Member”) of the Refugee
Protection Division [RPD] of the Immigration and Refugee Board [IRB] dated December
11, 2012, wherein the applicant was determined not to be a Convention refugee
or a person in need of protection. The applicant asks that the decision be set
aside and referred back to be reconsidered by a differently constituted panel
of the RPD.
[2]
For the following reasons, the application is
dismissed.
BACKGROUND
[3]
The applicant, Mayooran Sivaraththinam, is a Sri
Lankan of Tamil ethnicity who arrived on one of the two ships, the M/V Sun
Sea (the “Sun Sea”), bearing Tamil asylum-seekers which landed in Canada in late 2009 and mid-2010.
[4]
He was born in Atchevely, a northern province of
Sri Lanka which fell under the control of the Sri Lankan Army in 1995 when
the applicant was about seven years of age.
[5]
In 2007, on two or three occasions, the
applicant was stopped by the Army on his way to school along with other
students. He was let go after some questioning. The longest period of time he
was stopped for was two hours. He was stopped by the police because, according
to the applicant, young students were being targeted for recruitment by the Liberation
Tigers of Tamil Eelam [LTTE].
[6]
The applicant testified that neither he nor his
family had any problems with the LTTE or any other group. He has never been
accused of involvement with the LTTE by any governmental or nongovernmental
groups. He was never arrested, or charged for any criminal infraction. His life
was unmarred by any major incident with the authorities.
[7]
He subsequently began working as a security
guard at a bank that was situated between an army camp and a Tamil militant
camp. The RPD concluded that he would not normally be allowed to be a security
guard at a bank if he were a suspected criminal or LTTE member. The applicant
claims that he was scared to work at the bank as there had previously been
theft of the bank at gunpoint.
[8]
Fearing for his safety, the applicant left the
North and went to Colombo, where he procured a passport and a tourist visa to Thailand. He left Colombo on April 24, 2010, and went to Thailand, where he boarded the Sun Sea on May 16, 2010, arriving in Canada on August 13, 2010, where he claimed refugee
protection.
[9]
He claimed protection on three Convention
grounds: race, political opinion and membership in a particular social group.
DECISION UNDER REVIEW
[10]
In his decision, the Member determined that the
applicant was neither a Convention refugee nor a person in need of protection,
and that there was not a serious possibility that removal to Sri Lanka would
subject him personally to persecution, or that he would be subjected personally
to a risk to his life, or a risk of cruel and unusual treatment or punishment,
or to a danger of torture by any authority in Sri Lanka.
[11]
Firstly, the Member determined that the
applicant was not credible. This assessment was based primarily on a series of
inconsistencies between the applicant’s account of his story in his Claim for
Refugee Protection, his Personal Information Form [PIF], and in his testimony.
[12]
The Member also determined that even if he were
to find the applicant credible, his alleged subjective fear was not supported
by objective evidence, and therefore he had not established a well-founded fear
of persecution. In arriving at this conclusion, the Member examined the
applicant’s personal profile, and the current country conditions in Sri Lanka.
[13]
In terms of his personal profile, the Member
noted that the applicant did not have any particular problems with the LTTE,
nor was there any indication that he was ever accused of being involved with
the LTTE.
[14]
The Member noted that UNHCR’s 2010 revised
Eligibility Guidelines for Assessing the International Protection Needs of
Asylum- Seekers from Sri Lanka state that young Sri Lankan males from the
North are no longer in need of automatic eligibility for refugee protection,
and that asylum claims should be considered on their individual merits.
[15]
Further, the Member noted that the applicant did
not fit into any of the categories of persons for which UNHCR’s guidelines
recommend ongoing protection. The only category the applicant could arguably
fit in is persons suspected of having links with the LTTE, and the Member
determined that on a balance of probabilities the government authorities did
not suspect the claimant of LTTE involvement.
[16]
In terms of country conditions, the Member noted
that there continue to be problems in Sri Lanka, but that the situation affects
all Sri Lankans, not just Tamils. Furthermore, despite ongoing problems for
Tamils, the Member determined that there have been durable and meaningful
changes in the country conditions affecting Tamils, basing this determination
on the UNHCR guidelines. The Member mentioned, for example, that even LTTE
members are beginning to be released from detainment, which suggests that
someone like the claimant who, at most, would be suspected of mere links to the
LTTE, would probably not face problems if returned to Sri Lanka.
[17]
The Member examined other reports submitted by
the applicant, but ultimately preferred the documents and guidelines prepared
by the UNHCR over the other documentation available. He described the UNHCR as
the premier organization to protect human rights of people all over the world.
[18]
The Member went on to state that he was not
bound by his colleague’s decision that an asylum seeker who had arrived on the
second ship, the M/V Ocean Lady (the “Ocean Lady”) be granted refugee
status based on his membership in a particular social group as a Tamil male who
arrived as a passenger of the Ocean Lady.
[19]
The Member also found that despite Sri Lanka’s strict entry and exit controls, there is no evidence that the applicant will
face much more than questioning by officials upon return. Based on the UNHCR’s
practice of helping Tamils returning to Sri Lanka, the Member concluded that
Tamils do not face a serious chance of persecution upon return.
[20]
Ultimately, the Member concluded that the
applicant would not, on a balance of probabilities, be perceived to be linked
to the LTTE by the Sri Lankan government and therefore would not be targeted by
the government. He also found that there was no serious possibility that the
applicant would be persecuted upon return, and that therefore his fear was not
well-founded.
[21]
The Member then proceeded to an analysis of
whether the applicant is a refugee sur place, concluding ultimately that
he was not. After examining the documentary evidence submitted by the applicant
demonstrating the media coverage of the Ocean Lady and the Sun Sea, the Member
concluded that the applicant was not personally identified anywhere as a
passenger.
[22]
Furthermore, the Member concluded that there was
no evidence that the passengers aboard the two ships in question were
identified to the Sri Lankan government, and that on a balance of
probabilities, the Sri Lankan government would not perceive the applicant to be
a member or supporter of the LTTE on the basis of his travel on the Sun Sea. The Member emphasized that the jurisprudence is clear that the country of origin
has to be aware that the applicant was aboard the ship in order for him to be
considered a sur place refugee; in this case, the Member found that
there was insufficient evidence that the Sri Lankan authorities are aware that
the applicant was aboard the Sun Sea.
[23]
Ultimately, the Member found that regardless of
whether the Sri Lankan government becomes aware of the applicant’s travel
aboard the Sun Sea, he will not face any heightened risk as a result.
[24]
The Member then analyzed the potential risk
faced by the applicant under section 97 of the Immigration and Refugee
Protection Act [IRPA] in the form of extortion, and concluded
that he would face personalized risk from perceived wealth, but that because
this risk is faced by Sri Lankans in general, it is excluded pursuant to
section 97(1)(b)(ii) of IRPA as the risk is “faced generally by other
individuals in or from that country.” The risk of extortion is faced by any Sri
Lankan with a capacity to pay, including Tamils, Muslims, LGBT people,
merchants, etc. Ultimately, the Member concluded that that the risk would
remain a generalized risk.
APPLICANT’S SUBMISSIONS
[25]
The applicant claims that the Member erred in
his application of the test under s 96 of IRPA in stating that the test
was whether the applicant’s profile as a male Tamil puts him at personal
heightened risk in Sri Lanka today. According to the applicant, the proper test
is whether or not there is a reasonable chance or a serious possibility that
the applicant would be persecuted should he be returned to Sri Lanka (Chan v Canada (Minister of Employment and Immigration), [1995] SCJ No 78, [1995] 3 S.C.R. 593 [Chan] at
para 120). He claims that the Member also erred in the application of the Chan
test by articulating a necessity that the applicant be wanted by the Sri
Lankan authorities.
[26]
The applicant further
contends that the Member erred in his assessment of the applicant’s credibility
and in his reliance upon speculation.
[27]
The applicant alleges
that the Member’s focus on a minor contradiction in the applicant’s evidence
(his statement as to how many months he spent working at the bank) was
misplaced in that it was an immaterial concern.
[28]
The applicant also
claims that the Member erred in his reliance on some passages of UNHCR’s
guidelines, while ignoring other passages which indicate that male Tamils from
northern Sri Lanka do indeed still face a serious possibility of persecution
upon return (and which were drawn to his attention by applicant’s legal
counsel) (Toth v Canada (Minister of Citizenship and Immigration), 2002
FC 1133 at para 26).
[29]
The applicant alleges
that the Member ignored relevant documentary evidence indicating that Tamils
from northern Sri Lanka do face a serious possibility of persecution upon
return (Orgona v Canada (Minister of Citizenship and Immigration),
[2001] FCT 346 at para 31; Goman v Canada (Minister of Citizenship and Immigration),
2012 FC 643 at para 13).
[30]
The applicant also alleges that the Member erred in
his sur place finding by indicating that it is necessary for all the
passengers on the Sun Sea to have been found to have LTTE connections.
According to the applicant, it need only be established that there is more than
a minimal possibility that he would be persecuted upon return to Sri Lanka. The applicant also points out that the Member, on a few different occasions,
made an evaluation of the sur place claim on a balance of probabilities,
as opposed to “more than a minimal possibility.”
[31]
The applicant then contends that the Member erred in
his determination that the applicant’s fears represent a generalized risk and
not persecution for any Convention reason. The applicant was victimized by a
group with a political agenda, the Eelam People’s Democratic Party [EPDP], and
because the EPDP is a group that funds its political activities through
extortion, any refusal or reluctance to submit to extortion demands would be
considered to be indicative of opposition to that political agenda. The Member
failed to consider this aspect of the claim on the basis of perceived political
opinion, and considered it only under section 97, as opposed to section 96.
STANDARD OF REVIEW
[32]
In her recent decision in Canada (Minister of Citizenship
and Immigration) v A068, 2013 FC 1119
[A068] at paragraph 28, Justice Gleason stated the following:
[28] In focusing on whether the
Board erred in premising its decision on the risk the claimant would face due
to his background and the belief of the Sri Lankan authorities that he might be
an LTTE supporter (as opposed to consideration of what the “particular social
group” ground encompasses as a matter of law), the standard of review to be
applied is reasonableness as the issue is one of mixed fact and law as opposed
to a pure legal issue (see e.g. Dunsmuir
v New Brunswick, 2008 SCC 9 (CanLII),
2008 SCC 9 at para 53, 2008 SCC 9
(CanLII), [2008] 1 S.C.R. 190, B420 at para
13; A032 at para 14; B377 at para 8). In other words, what is at
issue is not what the grounds of “nationality”, “race” or “political opinion”
may mean under the Refugee
Convention, but, rather, whether the Board’s explicit or implicit finding
of a nexus to these grounds on the facts of this case should be disturbed. This
question requires application of the deferential reasonableness standard of
review.
[33]
In
the case at hand, the Member was making an assessment as to what risk the applicant would face due to his
background and the belief of the Sri Lankan authorities that he might be an
LTTE supporter. The standard of review is therefore reasonableness (see also B231
v Canada (Minister of Citizenship and Immigration), 2013 FC 1218, [B231] at para 28).
ISSUE
Was the Member’s assessment of the applicant’s potential risk upon
return reasonable?
ANALYSIS
Foundational Facts and Reasonable Outcome
[34]
In my view, the proper approach for a decision
of this nature, where the Member has carried out an exhaustive review of all
aspects of the case, should begin with a general analysis of the reasonableness
of the decision based on what I would describe as the foundational, by which I
mean undisputed or conclusive, facts.
[35]
By enunciating a test based on a range of
reasonable acceptable outcomes, I understand the Supreme Court in Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir], to be
directing reviewing courts to stand back and take a broad view of the
reasonableness of the decision based on all of the evidence. If that
perspective generally supports the conclusion that the decision is reasonable,
it will be challenging for the applicant to demonstrate that the decision falls
outside the range of reasonable acceptable outcomes unless a major flaw exists
in the reasoning that undermines the legitimacy of the decision.
[36]
In the matter at hand, which involves the risk
of persecution to the applicant and/or his need of protected person status, the
foundational and undisputed facts are supportive of a conclusion that the
board’s decision was more than reasonable.
[37]
The applicant acknowledges that neither he nor
his family had any problems with the LTTE or any other group. He has never been
accused of involvement with the LTTE by any governmental or nongovernmental
groups. He was never arrested, or charged for any criminal infraction. His life
was without any major incident with the authorities.
[38]
He departed legally from Sri Lanka without difficulty. He fits none of the profiles of persons identified by the UNHCR
as being at risk upon return to Sri Lanka.
[39]
He has done nothing in Canada in terms of involving himself in any political action group that would draw the
attention of Sri Lankan authorities. There is no evidence that he has been
identified as a passenger on the Sun Sea. There is no evidence that he has ever
been the target for extortion.
[40]
Accordingly, on the generally uncontested
foundational facts described above, the Member’s decision that the applicant
has not established a reasonable chance of having a well-founded fear of
persecution, or that he is a person in need of
protection, falls well within the range of reasonable
acceptable outcomes.
Incorrect Test
[41]
The applicant submits that the Member
articulated an incorrect test by stating that “the claimant would not face a
heightened risk upon return to Sri Lanka”. He argues that the standard is lower
than a balance of probabilities, but higher than a mere possibility.
[42]
In my view, this distinction would not make any
difference to the outcome given the persuasive value of the foundational facts,
but nevertheless, I am not of the opinion that there is such a clear
distinction to be drawn in the expression of the standards.
[43]
The Oxford Dictionary defines risk, when used in
its singular form, as referring to possibilities, which is the understanding that
I believe is attached to the term in common parlance:
1. a situation
involving exposure to danger: …
[mass noun]:
‘all outdoor activities carry an element of risk’
1.1
[in singular] the possibility that
something unpleasant or unwelcome will happen: …
[My emphasis]
[44]
A risk is a possibility that something
unpleasant will happen, which I take to mean the same thing as a possibility or
a chance when referring to fear of unwelcome persecution of a person. The
applicant argues that because the word “risk” is used in section 97 of IRPA,
for which the burden of proof is the balance of probabilities, its use by the
Member means that he is applying the wrong burden of proof to section 96 of IRPA.
I do not accept this submission because it is clear that the Member is carrying
out his analysis under section 96 and refers to the appropriate burden
elsewhere in the decision.
[45]
The applicant’s submission is also inconsistent
with his argument that “heightened risk” is something less than a balance of
probabilities, but greater than more than a mere possibility. This argument is
indicative of the fact that his real critique relates to the term “heightened”
rather than the term “risk”. I will deal with the issue of different qualifiers
of possibility, risk, etc, below. However, I wish first to set out the reasons
for my view that the test of “more than a mere possibility” misstates the test
as originally formulated in Adjei v Canada (Minister of Employment and
Immigration), [1989] 2 FC 680, [1989] FCJ No 67 [Adjei].
[46]
The Federal Court of Appeal in Adjei examined
the meaning of “well-founded fear”, concluding that the appropriate standard is
a reasonable chance, which lies somewhere between more than a minimal
possibility and a probability:
It was common ground
that the objective test is not so stringent as to require a probability of
persecution. In other words, although an applicant has to establish his case on
a balance of probabilities, he does not nevertheless have to prove that
persecution would be more likely than not. Indeed, in Arduengo v. Minister of
Employment and Immigration (1981), 40 N.R. 436 (F.C.A.), at page 437, Heald
J.A. said:
Accordingly, it is my
opinion that the board erred in imposing on this applicant and his wife the requirement
that they would be subject to persecution since the statutory definition supra
required only that they establish "a well-founded fear of
persecution". The test imposed by the board is a higher and more stringent
test than that imposed by the statute.
The parties were agreed
that one accurate way of describing the requisite test is in terms of
"reasonable chance": is there a reasonable chance that persecution
would take place were the applicant returned to his country of origin?
We would adopt that
phrasing, which appears to us to be equivalent to that employed by Pratte J.A.
in Seifu v. Immigration Appeal Board (A-277-82, dated January 12, 1983):
[I]n order to support
a finding that an applicant is a Convention refugee, the evidence must not
necessarily show that he "has suffered or would suffer persecution";
what the evidence must show is that the applicant has good grounds for fearing
persecution for one of the reasons specified in the Act. [Emphasis added].
What is evidently
indicated by phrases such as "good grounds" or "reasonable
chance" is, on the one hand, [1] that there need not be more than a
50% chance (i.e., a probability), and [2] on the other hand that there
must be more than a minimal possibility. We believe this can also be
expressed as a "reasonable" or even a "serious
possibility", as opposed to a mere possibility.
[Emphasis and
bracketed numbers added]
[47]
As I interpret Adjei,
the Court of Appeal was not suggesting that either "not more than a 50
percent chance" or "more than a minimal possibility" should be
accepted as the test for determining a well-founded fear under section 96 of
the IRPA. The immigration bar obviously prefers the standard of
"more than a mere possibility" because nearly anything is possible
and "more than a mere possibility" sounds like a threshold that is
close to a possibility.
[48]
This was not,
however, what the Court of Appeal was proposing in Adjei. It was
undertaking a process of deduction to determine a compromise standard between
the two extremities, neither of which was being suggested should apply. In my
view, therefore, the test of "more than a mere possibility" to
determine a well-founded fear misstates the test handed down by the Court of
Appeal in Adjei. The proper expression of the standard to determine a
well-founded fear is a "reasonable chance", "reasonable
possibility, "serious possibility", or "good grounds".
[49]
Returning to the
issue of appropriate qualifiers of possibilities, chances, etc, I am of the
view that any test not containing the term "reasonable" as a limitation
should be shunned. This would leave the appropriate standard to be either a
"reasonable chance" or a "reasonable possibility", as there
is no distinction between a chance or a possibility.
[50]
All three prognostic descriptors of fear, i.e.
possibility, chance, or risk need to be circumscribed in their scope. This is
because the vast range of circumstances they encompass does not make them
useful as a standard employed to impose remedies in a legal system that has
always discouraged floodgate consequences. Unfortunately, the need to impose
limitations has given rise to a number of different restraining qualifiers,
i.e. a “reasonable” chance, “more than a mere” possibility, a “serious”
possibility, and now a “heightened” risk.
[51]
Subject to my comments above on the test of
“more than a mere possibility,” I do not think that when used in the context of
section 96, there is any meaningful distinction between these various
descriptors as they have been developed in the jurisprudence. They are all
imprecise measures based on opinions of circumstances that are intended to be a
median between something less than a balance of probabilities and more than a mere
possibility.
[52]
That being said, I am of the view that the most
appropriate qualifier to a range of possibilities is that of “reasonable”.
Reasonableness is a ubiquitous measure or standard used throughout our legal
system, be it with respect to facts or law. It is a standard that combines
human experience with rational logic. It is implemented through the pragmatic fiction
of the reasonable person to provide an objective measure of decision-making in
a world of unlimited circumstances. What is more, it connotes reasonableness, a
notion which a fair legal system must be based upon.
[53]
A test such as “more than a mere” has no common
boundary of limitation any more than does “serious” or “heightened” when
applied to a possibility, risk or chance relating to fear. To be useful they
all have to come back to a sense of what a reasonable limitation is in the
circumstances, even though that may remain unsaid. That is because
reasonableness imports human experience and logic as an aid to define the
applicable boundary of possibilities, chances or risks that should give rise to
a well-founded subjective fear.
[54]
In reference to my preference for the term
reasonable, I note that the Supreme Court appears to be employing the term
“rational”, which it considers to have the same meaning as “reasonable,” as the
preferred expression in place of the term “possible” when describing acceptable
outcomes in the application of the Dunsmuir test. See, for example,
Justice Cromwell’s description of the test in Halifax (Regional
Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012]
1 SCR 364, at paras 44, 46 and 47:
[44] Reasonableness
as a standard of review reflects the appropriate deference to the
administrative decision maker. It recognizes that certain questions that come
before administrative tribunals do not lend themselves to a single result;
administrative decision makers have “a margin of appreciation within the range
of acceptable and rational solutions”: Dunsmuir, at para. 47
(emphasis added). Reasonableness is a concept that must be applied in the
particular context under review. The range of acceptable and rational solutions
depends on the context of the particular type of decision making involved and
all relevant factors: […] [My emphasis]
[…]
[46] […] Evans
J. held that he should only intervene to prohibit continuation of the inquiry
if satisfied that “there [was] no rational basis in law or on the evidence to
support the Commission’s decision that an inquiry by a Tribunal is warranted in
all the circumstances of the complaints” (para. 49).
[47] While I
would use the word “reasonable” rather than “rational”, I do not think there is
any difference in substance between the two formulations. As the Court said in
Dunsmuir, a result reached by an administrative tribunal is reasonable
where it can be “rationally supported” (para. 41).
[55]
In my view, a possible acceptable outcome is
different from a rational acceptable outcome. The fact that the Supreme Court,
which carefully measures its words, appears to have replaced the language of
possibilities with the more commonly understood standard of reasonableness
should be taken as a strong indication of the Court’s intent. In effect, the
Court appears to be saying that possible acceptable outcomes must be
reasonable, making reasonability the real standard. For the same reason, it
would be preferable to limit the description of the standard under section 96
to that of a reasonable possibility or chance, avoiding the language of risk
because of the confusion that it can give rise to in reference to section 97.
Establishing a single consistent standard would have the advantage of preventing
any further new synonyms being offered to describe degrees of fear of
persecution, while shifting the language in this field back to that normally
employed in the legal world.
.
[56]
Apart from his submissions on a test of
“heightened risk”, the applicant also claims that other incorrect tests were
employed by the Member. These included statements such as: “… life for the
remaining Tamil population has improved”; and “… the country is perceived
internationally to have become safer since the end of war.” I agree with the
respondent that these are not tests but merely findings of fact which are
determined upon a balance of probabilities.
Credibility Findings
[57]
The applicant challenged some of the Member’s
credibility findings, but spent little time in argument expanding on these. In
my view credibility was not a determinative issue inasmuch as the evidence that
was relied upon came from the applicant.
Challenge
to UNHCR Guidelines as the Principle Document to Determine Country Conditions
[58]
The applicant was critical of the Member for
failing to refer to certain passages in the UNCHR Eligibility Guidelines for
Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka,
which indicated that male Tamils from the North face a serious possibility of
persecution if returned to Sri Lanka on that basis alone. In that regard, he
highlighted references in the report to other reports which stated that “young
Tamil men, particularly those originating from the north and east of the
country, may be disproportionately affected by the implementation of security
and anti-terrorism measures on account of their suspected affiliation with the
LTTE.”
[59]
That particular passage does not state that
young males face a serious possibility of persecution if returned to Sri Lanka
on that basis alone, nor does it or other references and reports mentioned by
the applicant undermine the reliability of the UNHCR guidelines, which are
relied upon regularly, and which the panel member relied upon as part of his reasoning
to conclude that the applicant would not face a serious possibility of
persecution as a young male from the north of Sri Lanka on that basis alone.
[60]
The applicant was also critical of the alleged
failure to refer to much of the documentary evidence, which he argued directly
contradicted the member’s conclusion. In fact, I find that the panel member
considered reports, such as those from Amnesty International, along with other
reports, which contradicted the conclusion that the situation was generally improving.
The panel member indicated that he preferred the documents and guidelines
prepared by the UNHCR. This was certainly within his discretionary powers, and
in any event appears to be the preferred documentation in determining risk for
returning refugees.
[61]
A similar argument was put forth in B231, above,
in which Justice Kane upheld the use of the UNHCR guidelines at paragraphs
43-47:
[43]
[…] The Board thoroughly considered the documentary evidence concerning the
situation for Tamils in Sri Lanka and acknowledged the ongoing concerns,
particularly for Tamils who fit a certain profile. The Board, however,
reasonably concluded that the applicant’s particular profile would not put him
at risk if he were to return to Sri Lanka.
[44] The Board
addressed the contrary evidence but found, for several reasons, that it was not
persuasive and chose to “prefer the documents and guidelines prepared by the
UNHCR”.
[45] The
applicant strongly argued that the Board erred in failing to heed the advice of
the UNHCR that the more recent country condition evidence should be considered.
[46] I agree
with the applicant that the UNHCR is the foremost authority on the risks faced
in the country of origin.
[47] Therefore,
the Board was justified in relying on the 2010 UNHCR Guidelines which remained
unchanged at the date of the hearing and decision. The Board noted that the
previous version of the UNHCR Guidelines in 2009 called for protection for
young male Tamils more generally but had been superseded by the 2010 UNHCR
Guidelines, which note risks to particular people or categories of people and
call for an individualised assessment.
[…]
[50]
Although the applicant disagrees with the way the Board has
treated the contrary evidence, the Board’s analysis
of that evidence was thorough, balanced and unimpeachable under a
reasonableness standard of review.
[51]
The Board did exactly what the UNHCR advised –
an individual assessment based on the documentary evidence while acknowledging
the mixed evidence and identifying that it preferred to rely on the UNHCR
Guidelines. The Board found that the applicant would not be at risk.
[62]
In a similar vein, I conclude that the Member’s
treatment of the documentary evidence on country conditions was thorough, and
certainly holds up in the face of a reasonableness review. Furthermore, as in B231,
the Member carried out exactly what the UNHCR Guidelines recommend: an
individual assessment based on the applicant’s profile. It is not the task of
this Court to disturb that assessment.
Sur Place Claim as Passenger on
the Sun Sea
[63]
In A068, Justice Gleason conducted a thorough review of the
case law pertaining to the various refugee claims made by passengers who
arrived in Canada on the Ocean Lady and the Sun Sea.
[64]
The question that has
been raised in this series of decisions is whether the mere fact of having been
aboard the Ocean Lady or the Sun Sea is enough to make passengers members of a
“particular social group” within the meaning of section 96 of IRPA (A068
at para 18). In Canada (Citizenship and Immigration) v B380, 2012
FC 1334 at paras 23-27, Chief Justice Crampton held that the RPD had erred by
determining that passengers of the Sun Sea constituted a particular social
group for purposes of application of section 96. In A068 at paragraph
18, Justice Gleason points out that Justices O’Reilly, Blanchard, Noel, Mosley
and de Montigny have made similar findings to the Chief Justice in Canada (Minister
of Citizenship and Immigration) v B399, 2013 FC 260 at paras 16-18; Canada
(Minister of Citizenship and Immigration) v B420, 2013 FC 321 at
para 17; Canada (Minister of Citizenship and Immigration) v B451, 2013
FC 441 at para 27; Canada (Minister of Citizenship and Immigration) v
B171, 2013 FC 741 at paras 11-13; and Canada (Minister of Citizenship
and Immigration) v B272, 2013 FC 870 at para 75.
[65]
However, Justice
Gleason goes on to point out at paragraph 22 that:
[…] several cases have upheld RPD findings in
situations like the present case where the RPD premised
its decision in large part on the claimants being members of a “particular
social group” comprised of Tamils who were at risk as a result of their
presence on one of the vessels but also commented at one place or another in the
decision that the risk in question was tied to the claimants’ ethnicity and the
possibility that they might be viewed as supporters of the LTTE. In B399, B420, B377, B344 and B272,
Justices O’Reilly, Blanchard, Noël and de Montigny upheld the decisions reached
by the RPD on the basis of there being a confluence of grounds related to race
and perceived political opinion, which they found to be sufficient to establish
a nexus to one of the grounds in the Refugee
Convention. To a greater
or lesser extent, in each of these decisions, my colleagues have read into the
Board’s reasons to reach their conclusions. For example, Justice O’Reilly noted
at para 19 of B399:
Unfortunately, the Board’s findings are not as clear as
they could have been; yet, the following passage in its reasons supports B399’s
contention that the Board did not rest its conclusion solely on membership in a
particular social group as a passenger on the MV Sun Sea:
[…] the claimant will most likely be detained and
questioned … upon his return to Sri Lanka…The panel finds that the authorities
will suspect the claimant has links to the LTTE. The country documents
establish that Tamils suspected of having links to the LTTE continue to be
subject to serious abuses, including torture, by the authorities in Sri Lanka.
[23]
In B399, B420, A032, B377, B344 and B272,
Justices O’Reilly, Blanchard, Noël and de Montigny determined that decisions
much like the one in this case were reasonable as there was evidence to support
the conclusion that the claimants might be at risk of torture if returned to
Sri Lanka and that such torture was based on the confluence of their ethnicity,
suspected complicity with the LTTE and possession of knowledge about the LTTE,
the first two of which would invoke the grounds of race and perceived political
opinion.
[24]
Conversely, in B472 at para 28, B323, A011 at
paras 40-42, B459 at para 7, and B171 at para
10, Justices Harrington and Mosley refused to engage in a similar reading-in
exercise and decided the cases based solely on the reasonableness or
correctness of the Board’s analysis of the “particular social group” ground for
refugee protection. In B472 and A011, Justice
Harrington set aside RPD decisions as incorrect where the Board found the claimants
to be members of a “particular social group” comprised of passengers at risk
due to their presence on one of the vessels, and in B459 and B171,
Justice Mosley set a similar finding aside as unreasonable. In all four cases,
they certified a question regarding the appropriate standard of review and held
that it was inappropriate to consider whether the RPD’s decision could be
upheld under the grounds of race or perceived political opinion as neither of
these grounds was specifically addressed by the RPD as a reason for granting
refugee status.
[66]
The Member in the case
at hand concluded that there was insufficient evidence to show that the Sri
Lankan authorities will have knowledge that the claimant was a passenger on the
Sun Sea. He also concluded that there was insufficient evidence that the
applicant would be treated any differently than any other returnee to the
country given his complete lack of past association with the LTTE.
[67]
While the member did
not explicitly address the question of membership in a particular social group,
he discussed the situation in Sri Lanka for young Tamil men, and the potential
risks the applicant would face upon return as a result. His findings were based
on a comprehensive survey of the documentary evidence in regards to country
conditions in Sri Lanka, as well as on the applicant’s own testimony to the
Board. His conclusion that, on a balance of probabilities, there was not a
serious possibility that the applicant would face persecution upon return is
both reasonable and an application of the correct test as laid out in Adjei; Németh v Canada (Justice), 2010 SCC 56 at para 98, [2010] 3 S.C.R. 281; Mugadza v Canada
(Minister of Citizenship and Immigration), 2008
FC 122 at para 20, 164 ACWS (3d) 841; and Canada (Citizenship and Immigration)
v A068, 2013 FC 1119 at para 8.
The applicant’s extortion claims
[68]
In respect of the applicant’s contention that he
is subject to a risk of extortion by the EPDP, I recently discussed the nature
of extortion for purposes of a personalized versus generalized risk assessment
under section 97 of IRPA in Wan c Canada (Citoyenneté et Immigration),
2014 CF 124. Extortion is by nature a personalized crime, a fact which gives
rise to some confusion in the ensuing risk analysis. When faced with a claim of
fear based on extortion, the Board must determine whether the claimant has
provided sufficient evidence to meet his onus that the general crime of
extortion in his particular circumstances presents a sufficient risk to his
life or a risk of cruel and unusual treatment to take it outside of the risk
faced by other similarly situated individuals in the country in question, in
this case, Sri Lankans who are perceived as wealthy. This was the analysis
carried out by the Member, who pointed out that the allegations of risk raised
by the applicant did not differentiate his situation from that of any other Sri
Lankan perceived as wealthy.
[69]
In sum, the Member’s decision was a reasonable
one in light of the facts and the law.
CONCLUSION
[70]
This application for judicial review is dismissed.
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