Date:
20140310
Docket:
IMM-11087-12
Citation:
2014 FC 234
Ottawa, Ontario,
March 10, 2014
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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KETHESWARAN THEVARASA
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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]
This
is an application for judicial review of the decision of Dominique Setton, a
member of the Refugee Protection Division of the Immigration and Refugee
Protection Board [the Board], pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act]. The Board dismissed
the Applicant’s claim for refugee protection, concluding that he was not a
convention refugee or person in need of protection under sections 96 and 97 of
the Act.
II. Issue
[2]
Was
the Board’s decision unreasonable in finding that the Applicant is not a
Convention refugee or a person in need of protection?
[3]
The
Applicant is Tamil citizen of Sri Lanka, originally from Kanagarayankulam, in
the Northern region. He has a wife and three children who remain in Sri Lanka.
[4]
The
Applicant alleges a series of problems that began in 1997, when the Liberation
Tigers of Tamil Elam [LTTE] and the Sri Lankan Army [SLA] fought in the
Northern region and he was displaced. His brother was arrested by the SLA and
detained in Colombo until 2009.
[5]
In
2000, the SLA withdrew from the area, and the LTTE re-occupied his village and
the Applicant returned.
[6]
The
Applicant claims his father was killed in cross-fire between the SLA and the
LTTE on October 12, 1995, and his mother’s cousin was shot by the SLA in 2005.
[7]
His
village was bombed beginning in mid-2008 and the Applicant was displaced a
total of 19 times as a result of these bombings.
[8]
On
March 27, 2009, the Applicant and his family arrived in the Cheddikulam
Arunachelvam internal refugee camp. During his time in the camp he was
questioned repeatedly and threatened by some pro-government groups who were
working with the government. On one occasion a member of these groups put a gun
to the Applicant’s chest and accused him of being a member of the LTTE.
[9]
On
December 5, 2009, he was released from the camp and sent back to
Kanagarayankulam. Harassment from the SLA and the police continued. In
particular, they asked him questions about his brother.
[10]
The
Applicant took his wife and children to Vavuniya, a town near Kanagarayankulam.
He then travelled to Colombo alone on January 29, 2010. On May 23, 2010, he
left for Canada as one of nearly 500 Tamils aboard the MV Sun Sea cargo ship.
He arrived in Canada in August, 2010, and subsequently sought refugee
protection.
[11]
The
Board denied the Applicant’s claims under sections 96 and 97 of the Act. The
Board did not find the Applicant’s claims of persecution as someone suspected
of having links to the LTTE to be credible, nor did they found that he had a
basis for a claim as a sur place refugee based on the media attention
resulting from his passage to Canada on the Sun Sea.
[12]
First,
the Board noted that the Applicant alleged that he was questioned in the
Cheddikulam Arunchelvam camp on the basis that his family was suspected to be a
“Tiger Family,” or a family predominantly composed of LTTE members. Despite
this, there is no evidence that other family members were questioned. The Board
found it implausible that he would be suspected of being part of a “Tiger
Family” but that other family members would not be questioned.
[13]
Second,
the Board found an inconsistency as to whether he was detained and arrested at
any point. In his initial Personal Information Form [PIF], he answers “no,” to
question nine, which asks whether he has ever been “sought, arrested or
detained by the police or military or any other authorities in any country,
including Canada.” In his amended PIF, he answers “yes.” There was no other
evidence provided, in his testimony or otherwise, to suggest he was ever
detained. The Board drew a negative credibility inference from this
inconsistency.
[14]
Third,
the Board noted that the Applicant’s family remains in Sri Lanka. The Board found it implausible that he would have left his family in Sri Lanka if he had a genuine fear as a result of the SLA suspecting his family to be a “Tiger
Family.”
[15]
Fourth,
during his testimony the Applicant noted that he also feared that the SLA suspected he was a member of the LTTE, rather than only an individual with links to the
LTTE. This fear was based on the SLA, in questioning the Applicant, referring
to a photograph of him which apparently was evidence that he was an LTTE
member. The Board found it suspect that this photograph was not referred to in
either PIF, given that it changed the nature of his fear.
[16]
Fifth,
the Applicant’s wife was telephoned and asked why the Applicant’s father died.
She replied that “He was drinking too much, and he had a conflict with my
mother, and he took poison and died.” This was confirmed by the Applicant’s
mother. This version of his father’s death is inconsistent with the Applicant’s
version: that he died in crossfire between the LTTE and the SLA. The Board drew
a negative credibility inference as a result.
[17]
Finally,
the Board noted that the Applicant’s wife was telephoned and asked why the
Applicant left Sri Lanka, and she stated “because he lost all his properties,
and there is no proper way to survive, so that is why he left.” The Applicant
was confronted with this inconsistency during the hearing before the Board. He
suggested his wife was lying because she was afraid of being monitored by the
police. The Board did not accept this explanation as reasonable.
[18]
On
account of the above, the Board did not believe the Applicant’s claims and did
not find him a convention refugee or a person in need of protection as a result
of events that occurred before he left Sri Lanka.
[19]
The
Board also did not believe the Applicant had a valid claim to being a sur
place refugee, on the basis that he might be perceived as having links to
the LTTE having regard to the media attention that the landing of the Sun Sea received internationally. The Board notes that the definition of a sur place
refugee according to the United Nations High Commissioner for Refugees [UNHCR]
is:
A person becomes a refugee sur place due to
circumstances arising in his country of origin during his absence.
[20]
The
Board found that there have only been four cases of returnees being detained
upon return to Sri Lanka, and those individuals had outstanding criminal
charges – something that the Applicant does not profess to have. The
documentary evidence also shows that the British High Commission has noted that
returnees are able to pass through routine checks in the airport. The Board
further notes that the Applicant has provided no evidence of similarly situated
individuals to himself, such as other passengers on the Sun Sea or the Ocean Lady.
[21]
The
Board accepted a statement from the RCMP which indicates that no personal
information about Sun Sea passengers was shared with the Sri Lankan government.
Based on this statement, the Board concluded that the Applicant would not be at
risk due to the Canadian government’s interactions with Sri Lanka.
[22]
The
Board noted other documentary evidence which suggests ambiguity regarding
whether the Sri Lankan government views the Sun Sea passengers as
LTTE-connected. While noting that some sources, such as the Sri Lankan High
Commission in Ottawa, are of the view that the passengers are predominantly
“LTTE people,” the Board found that the Sri Lankan government’s general view is
that the passengers of the Sun Sea are victims of human smuggling.
III. Standard of Review
[23]
The
standard of review is reasonableness (Canada (Minister of Citizenship
and Immigration) v Khosa, 2009 SCC 12; Dunsmuir v New Brunswick, 2008
SCC 9).
IV. Analysis
[24]
The
Applicant argues that having a gun held to one’s chest during an interrogation
is torture, persecutory and cruel and unusual treatment, citing the United
Nations Convention Against torture. Further, the Federal Court of Appeal has
stated that detention and mistreatment based on ethnicity constitutes
persecution (Thirunavukkarasu v Canada (Minister of Employment and Immigration),
[1993] FCJ No 1172, at para 22).
[25]
Moreover,
the Applicant argues that the Board erred in rejecting the Applicant’s evidence
that the SLA suspected he was part of a “Tiger Family” because the rest of his
family was part of a tiger family. To require the Applicant to prove the
actions of the SLA were rational and justifiable is an error (Yoosuff v Canada (Minister of Citizenship and Immigration), 2005 FC 1116, at paras 8-9).
[26]
The
Applicant also argues that the Board erred in selectively referring to the
evidence to discredit the Applicant. In particular, the Applicant notes that
many of his family members state that he was questioned repeatedly and harassed
by the SLA.
[27]
Further,
the Board failed to consider what would happen to the Applicant if he admitted
the steps he took to leave Sri Lanka on the Sun Sea, including paying money to
the LTTE. By assuming that a failed refugee claimant can successfully lie to
his own government, it is alleged that the Board erred (Donboli v Canada (Minister of Citizenship and Immigration), 2003 FC 883, at para 8).
[28]
Finally,
it is alleged the Board erred in selectively referencing the documentary
evidence. For example, with regard to returnees, the Board references the
Request for Information Report 103815, which states that only four persons
returning to Sri Lanka have been detained to the knowledge of Canadian
officials. However, the Applicant notes that later in that report it is stated
that individual returnees have been very vulnerable, and that all asylum
seekers have been detained.
[29]
I
do find some of the Board’s findings questionable. I agree with the Applicant
that to require the Applicant to prove the actions of the SLA were rational and
justifiable is an error (Yoosuff at paras 8-9). As such, the fact that
the SLA did not question the rest of the Applicant’s family is not a basis to
undermine his credibility. Likewise, the fact that the Applicant did not take
his family with him on the Sun Sea does not impact his credibility, given the
difficulties in illegally leaving a country experiencing conflict.
[30]
However,
the Board found inconsistencies as to whether the Applicant was detained, the
existence of a photograph which changed the nature of his fear, how his father
died, and why he left Sri Lanka. These findings are based in concrete
inconsistencies, and given the deference accorded to the Board on the standard
of reasonableness, should not be interfered with (Rahal v Canada (Minister of Citizenship and Immigration), 2012 FC 319, at para 22).
[31]
The
Applicant does note that his mother supports his testimony regarding the reason
he left Sri Lanka and the Board neglected to mention this. This is true.
However, it does not undermine the fact that the Applicant’s wife gave another
reason for him leaving, and this was the inconsistency noted by the Board. It
was reasonable on the evidence for the Board to draw a negative credibility
inference based on this.
[32]
Moreover,
while the Applicant does not address the potential that he is a sur place
refugee, the decision of Justice Richard Boivin in Sivanathan v Canada
(Minister of Citizenship and Immigration), 2014 FC 184, at para 12, states
that “…merely being on board the Sun Sea was not sufficient, in and of itself,
to establish a sur place claim”. This decision should be read in light
of Justice Russell Zinn’s decision in Pillay v Canada (Minister of
Citizenship and Immigration), 2014 FC 160, at paras 14-16:
[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.
[33]
The
Board did turn its mind to the possibility that the Applicant may face
persecution, at paragraphs 43 and 45 to 49 of the decision. Accordingly, I find
that the Board was reasonable to conclude that the Applicant did not have a
valid basis for a sur place refugee claim.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The Application is
dismissed;
2. There is no question for
certification.
"Michael D.
Manson"
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