Docket:
IMM-28-13
Citation: 2014 FC 324
Ottawa, Ontario, April 3, 2014
PRESENT: The Honourable
Mr. Justice Russell
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BETWEEN:
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Y. […] S. […]
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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
INTRODUCTION
[1]
This is an
application under subsection 72(1) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [Act] for judicial review of the decision of the Refugee
Protection Division of the Immigration and Refugee Board [RPD or the Board],
dated December 10, 2012 [Decision], which refused the Applicant’s application
to be deemed a Convention refugee or a person in need of protection under
sections 96 and 97 of the Act.
BACKGROUND
[2]
The Applicant is a
citizen of Sri Lanka of Tamil ethnicity and Hindu religious background and
belief. He was born and raised in northern Sri Lanka.
[3]
The Applicant fled Sri Lanka due to his alleged fear of persecution and death at the hands of the Sri Lankan
Army (SLA), the Central Intelligence Department (CID) and a paramilitary group,
the Eelam People’s Democratic Party (EPDP).
[4]
The Applicant’s
Personal Information Form (PIF) recounts several violent encounters with the SLA occurring over a ten-year period.
[5]
In 2001, the
Applicant was allegedly stopped by an SLA patrol and beaten severely for being
a suspected Liberation Tigers of Tamil Eelam (LTTE) member due to the presence
of scars on his face, despite the Applicant’s explanation that they were caused
by a childhood injury.
[6]
In 2003, the
Applicant opened a shop with the help of his family, and lived in peace with
his wife for the next three years.
[7]
In December 2006, a
bomb blast occurred one night near his house. When exiting his home to go to
work the next morning, the Applicant was accused by the SLA of having set off
the bomb and of being an LTTE member. The Applicant was beaten and detained.
That evening, he was released with the assistance of the head of his village on
the condition that he check-in at the SLA army camp every week. He was told not
to speak of the incident to anyone or he would be killed, and was again beaten
after he told soldiers on the way out of the camp what had happened.
[8]
Between 2007 and
2009, after each incident between the SLA and the LTTE, the Applicant was
interrogated, tortured and beaten by the SLA.
[9]
In November 2009, the
Applicant’s mother purchased the building that housed his business. Having
learned of the purchase, four armed members of the EPDP demanded that the
Applicant pay them a large amount of money. When the Applicant refused to pay,
he was given a final warning and told that he would be killed if he did not
comply. The Applicant then closed his shop and went into hiding. When he did
not check in with the SLA, his house was ransacked. An opportunity to escape
presented itself in January 2010, and the Applicant fled to Colombo. After
being forced to leave the lodge where he was staying because he could not
provide a clearance certificate from the army, he left for Thailand.
[10]
From Thailand, he learned that his parts supplier had received a similar demand for payment and
after refusing to comply, the supplier’s son was kidnapped and killed.
[11]
The Applicant boarded
the MV Sun Sea on April 20, 2010 and arrived in Canada on August 13, 2010. He made a claim for refugee protection that same day, based on a
well-founded fear of persecution for reasons of race, political opinion and
membership in a particular social group.
[12]
On December 10, 2013,
the RPD determined that the Applicant was not a Convention refugee or person in
need of protection under sections 96 and 97 of the Act.
DECISION UNDER REVIEW
[13]
The RPD dismissed the
Applicant’s claim for several reasons, namely: that he was not credible; his
subjective fear was not supported by objective evidence; and there had been
meaningful and durable changes in the country conditions affecting Tamils such
that there were no compelling reasons to accept his claim. The RPD also found
that the Applicant was not a refugee sur place, and that the alleged
risk of extortion was a generalized risk, falling under paragraph 97(1)(b) of
the Act.
[14]
With respect to the
Applicant’s credibility, the RPD found his testimony regarding his childhood
injury to be contradictory, finding that he first stated he was 10 or 12 years
old when it occurred, and later said he was 16 or 17 years old. The Applicant’s
explanation that he could not recall when he had fallen was found to be
unreasonable. As well, the Applicant was unable to provide a copy of the
medical report for the 2001 incident with the SLA, and testified that “probably
it got lost.”
[15]
The RPD also found
that the Applicant provided conflicting testimony regarding the army’s arrival
following the bomb blast, first stating that they arrived two to three hours
after the blast, and then stating he had heard gun shots by the army at the
time of the blast. His explanation that the army was present at the time of the
blast, but arrived in large numbers several hours later, was not found to be
reasonable. No supporting evidence of the blast was provided. The RPD was not
satisfied with the Applicant’s explanation that the absence of evidence was due
to the fact that no one was injured and nothing had been demolished. The RPD
also found it implausible that the SLA would think that the person responsible
for the bomb was waiting at a bus stop next to the blast site two to three
hours after the blast, and unlikely that he would be released on the same day.
[16]
On the subject of the
Applicant’s business, the RPD found his testimony to be conflicting and noted
that he had not provided any credible supporting evidence of its existence. The
RPD also noted that the Applicant had not mentioned his fear of the EPDP in his
Claim for Refugee Protection, and found this to be inconsistent with his PIF
and testimony at the hearing.
[17]
With respect to the
Applicant’s objective fear, the RPD acknowledged that persons suspected of
association with the LTTE are still at risk, but found that, on a balance of
probabilities, the Applicant was not suspected of LTTE involvement or of having
any association with the LTTE. Rather, the RPD found that the Applicant’s
profile does not put him at risk from the police or other Sri Lankan
authorities. Even if the RPD had believed the Applicant’s story, it found that the
incidents he experienced would not have amounted to persecution.
[18]
The RPD noted that
the test for refugee protection is forward-looking, and found that there have
been significant improvements in Sri Lanka for the civilian Tamil minority. As
a result, the RPD found there was not a serious possibility that the Applicant will
be subjected personally to persecution, or that he will be subjected personally
to a risk to his life, a risk of cruel and unusual treatment or punishment, or
a danger of torture by the Sri Lankan government.
[19]
The RPD also
considered whether there were compelling reasons to grant refugee protection
despite the improvement of conditions for the civilian Tamil minority in Sri Lanka, and found that the exception in subsection 108(4) of the Act did not to apply
because the Applicant’s alleged fear of persecution was based on events that
were found not to be credible.
[20]
The RPD considered
the Applicant’s risk as a returning Tamil, and concluded that there was
insufficient evidence that he will face a risk of harm as set out in subsection
97(1) of the Act.
[21]
The RPD also found
that the Applicant has not become a refugee sur place due to his arrival
in Canada on the MV Sun Sea. Even if the Sri Lankan authorities were to
learn that he had been on board the ship, on a balance of probabilities, there
is insufficient evidence that he will face a heightened risk simply for having
been a passenger.
[22]
With respect to the
risk of extortion alleged by the Applicant, the RPD found that if the Applicant
was a victim of extortion, it was because of his perceived ability to pay.
Although this constitutes a personalized risk, it is also a generalized risk
faced by all who can pay and as such falls under the subsection 97(1)(b)(ii)
exception.
[23]
In light of the
above, the RPD did not find that the Applicant was a Convention refugee or a person
in need of protection under sections 96 or 97 of the Act.
ISSUES
[24]
The Applicant raises
the following issues in this application:
a.
Did the RPD err in
law in its interpretation and application of the definition of a Convention
refugee set out in section 96 of the Act?
b.
Did the RPD err by
applying incorrect tests?
c.
Did the RPD err in
its findings with respect to credibility?
d.
Did the RPD err in
not finding that the Applicant faced a serious possibility of persecution in Sri Lanka?
e.
Did the RPD err in
its sur place finding?
f.
Did the RPD err in
its finding with respect to generalized risk?
[25]
I would restate these
issues as follows:
a.
Did the RPD err in
its interpretation of the definition of a Convention refugee set out in section
96 of the Act, or apply the wrong test for any of the elements of that
definition?
b.
Did the RPD err in
its credibility findings?
c.
Did the RPD err in
finding that the Applicant did not face a serious possibility of persecution in
Sri Lanka?
d.
Did the RPD err in
its sur place finding?
e.
Did the RPD err in
its finding that the Applicant faced a generalized risk?
STANDARD OF REVIEW
[26]
The Supreme Court of
Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held
that a standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to a particular question
before the court is settled in a satisfactory manner by past jurisprudence, the
reviewing court may adopt that standard of review. Only where this search proves
fruitless, or where the relevant precedents appear to be inconsistent with new
developments in the common law principles of judicial review, must the
reviewing court undertake a consideration of the four factors comprising the
standard of review analysis: Agraira v Canada (Public Safety and Emergency
Preparedness), 2013 SCC 36 [Agraira].
[27]
With respect to the
first issue, where the jurisprudence has firmly
established the test for some elements of the Convention refugee definition, it
is not open to the decision-maker to apply a different test, and a correctness
standard applies on review: Ruszo v Canada (Minister of Citizenship and
Immigration), 2013 FC 1004 [Ruszo] at paras 17 – 23; see also Buri
v Canada (Minister of Citizenship and Immigration), 2014 FC 45 at paras
16-17. However, where the issue relates to whether the Board erred in applying
settled law to the particular facts of the case, that issue is reviewable on a
standard of reasonableness: Ruszo, above, at para 22; Canada (Minister
of Citizenship and Immigration) v A068, 2013 FC 1119 at para 12.
[28]
The RPD’s credibility
findings are reviewable on a standard of reasonableness (see Aguebor v Canada (Minister of Employment and Immigration)(1993), 160 NR 315, [1993] FCJ No 732 (FCA); Elmi v Canada (Minister of Citizenship and Immigration), 2008 FC 773 at para 21; Aguilar
Zacarias v Canada (Minister of Citizenship and Immigration), 2012 FC 1155
at para 9. The standard of review on the third issue is therefore
reasonableness.
[29]
The standard of
review on the third issue is also reasonableness, as it constitutes a mixed
question of fact and law (see Dunsmuir, above, at para 47).
[30]
The RPD’s finding
with respect to the Applicant’s sur place claim is reviewable on a
standard of reasonableness (see B198 v Canada (Minister of Citizenship and
Immigration), 2013 FC 1106 at para 24; Ganeshan v Canada (Minister of Citizenship and Immigration), 2013 FC 841 at para 9).
[31]
With respect to the
RPD’s finding of generalized risk, the reasonableness standard is also applicable
(see VLN v Canada (Minister of Citizenship and Immigration), 2011 FC 768
at paras 15-16; Vasquez v Canada (Minister of Citizenship and
Immigration), 2011 FC 477 at paras 13-14; Innocent v Canada (Minister of Citizenship and Immigration), 2009 FC 1019.
[32]
When reviewing a
decision on the standard of reasonableness, the analysis will be concerned with
“the existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” See Dunsmuir, above, at para 47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para
59 [Khosa]. Put another way, the Court should intervene only if the
Decision was unreasonable in the sense that it falls outside the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.”
STATUTORY PROVISIONS
[33]
The following
provisions of the Act are applicable in these proceedings:
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Convention
refugee
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside each of their countries of
nationality and is unable or, by reason of that fear, unwilling to avail
themself of the protection of each of those countries; or
(b) not having a country of nationality, is
outside the country of their former habitual residence and is unable or, by
reason of that fear, unwilling to return to that country.
Person in
need of protection
97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to a danger, believed on substantial
grounds to exist, of torture within the meaning of Article 1 of the
Convention Against Torture; or
(b) to a risk to their life or to a risk of
cruel and unusual treatment or punishment if
(i) the person is unable or,
because of that risk, unwilling to avail themself of the protection of that
country,
(ii) the risk would be faced by
the person in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent
or incidental to lawful sanctions, unless imposed in disregard of accepted
international standards,
(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
[…]
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Définition de
« réfugié »
96. A qualité de
réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques:
a) soit se trouve hors de tout pays dont elle
a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer
de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se
trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut
ni, du fait de cette crainte, ne veut y retourner.
Personne à
protéger
97. (1) A qualité
de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au
risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture
au sens de l’article premier de la Convention contre la torture;
b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
(i) elle ne peut ou, de ce fait,
ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu
de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y
trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne
résulte pas de sanctions légitimes — sauf celles infligées au mépris des
normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne
résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
[…]
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ARGUMENTS
The Applicant
[34]
The Applicant submits
that the RPD applied several incorrect tests in its assessment of his refugee
claim under section 96 of the Act. The test is not “whether or not the
claimant’s profile as a male Tamil puts him at personal heightened risk in Sri Lanka today” or whether “the claimant would… face a heightened risk upon return to Sri Lanka.” Rather, the test is whether there is a reasonable chance or a serious
possibility that the claimant would be persecuted should he be returned to his
country of nationality. The Applicant submits that the standard is lower than a
balance of probabilities, but higher than a mere possibility (Chan v Canada (Minister
of Employment and Immigration), [1995] 3 S.C.R. 593 at para 120; Ponniah v
Canada (Minister of Employment & Immigration) (1991), 13 Imm L R (2d)
241 (FCA)).
[35]
The Applicant says
the RPD stated other incorrect tests in its decision, including whether or not
conditions have “improved,” become “safer” or “deteriorated,” whether “on a
balance of probabilities, should the claimant return to Sri Lanka, there is […]
a serious possibility that he will be subjected personally to persecution,” and
whether he was “wanted by the Sri Lankan authorities.” The Applicant argues
that Canadian refugee law has long recognized that personal targeting is not a
requirement (Salibian v Canada (Minister of Employment & Immigration),
[1990] 3 FC 250; Kang v Canada (Minister of Citizenship & Immigration),
2005 FC 1128 at para 10; Fi v Canada (Minister of Citizenship & Immigration),
2006 FC 1125 at para 14) and that the test is not whether the Applicant is
actively wanted (Rayappu v Canada (Minister of Citizenship and Immigration)
(October 24, 2012), IMM-8712-11 at paras 2-7 (FC); Sinnathamby v Canada (Minister
of Citizenship and Immigration) (January 21, 2013), IMM-3828-12 at para 6
(FC)).
[36]
With respect to the
RPD’s credibility assessment, the Applicant says the RPD erred by not providing
clear reasons for finding that the Applicant’s explanations were unreasonable (Armson
v Canada (Minister of Employment & Immigration) (1989), 9 Imm LR (2d)
150; Hilo v Canada (Minister of Employment & Immigration) (1991), 15
Imm LR (2d) 199; Rahman v Canada (Minister of Employment & Immigration)
(1989), 8 Imm LR (2d) 170; Bains v Canada (Minister of Employment &
Immigration) (1993), 20 Imm LR (2d) 296 [Bains]; Vodics v Canada
(Minister of Citizenship and Immigration), 2005 FC 783 at paras 9, 11; Dong
v Canada (Minister of Citizenship and Immigration), 2008 FC 1151 at para
3). The Applicant also submits that the RPD committed an error by impugning the
Applicant’s credibility on the basis of an absence of corroborative
documentation. Rather, it is the absence of a reasonable explanation for a lack
of corroborative documentary evidence that can lead to a negative determination
of credibility (Ahortor v Canada (Minister of Employment & Immigration)(1993),
65 FTR 137, [1993] FCJ No 705, (Fed TD); Poshteh v Canada (Minister of
Citizenship and Immigration), 2005 FC 1034 at para 7; Osman v Canada
(Minister of Citizenship & Immigration), 2008 FC 921 at paras 37-39; Taha
v Canada (Minister of Citizenship and Immigration), 2004 FC 1675 at para 9;
Liang v Canada (Minister of Citizenship and Immigration), 2001 FCT 341
at para 8 (Fed TD); Zheng v Canada (Minister of Citizenship and Immigration),
2007 FC 1274 at para 15; Giraldo Cortes v Canada (Minister of Citizenship
and Immigration), 2011 FC 329 at para 3).
[37]
Furthermore, the
Applicant argues, the RPD engaged in a microscopic examination of the evidence.
While the Board found that the Applicant provided conflicting testimony
regarding the nature of his business, as well as the army’s time of arrival at
the scene of the bomb, these elements are not particularly material to the
claim and this Court has repeatedly cautioned against basing findings on a
microscopic examination of the evidence (Attakora v Canada (Minister of
Employment & Immigration) (1989), 99 NR 168 (FCA); Moute v Canada
(Minister of Citizenship and Immigration), 2005 FC 579 at para 15; Khan
v Canada (Minister of Citizenship and Immigration), 2006 FC 1490 at para
19).
[38]
The Applicant further
argues that the RPD made findings about the likelihood of the Sri Lankan army’s
actions based on sheer speculation, which this Court has cautioned against (Giron
v Canada (Minister of Employment & Immigration) (1992), 143 NR 238 at p
239; Leung v Canada (Minister of Employment & Immigration) (1994),
81 FTR 303 at para 15; Valtchev v Canada (Minister of Citizenship &
Immigration), 2001 FCT 776 at para 7 (Fed TD); Yin v Canada (Minister of
Citizenship and Immigration), 2010 FC 544 at para 41).
[39]
With respect to the
RPD’s finding that it was contradictory for the Applicant not to mention his
fear of the EPDP in his initial Claim for Refugee Protection, while doing so at
the hearing and in his PIF, the Applicant submits that any contradiction is
more apparent than real, and that the RPD erred by relying upon such a
perceived contradiction (Triana Aguirre v Canada (Minister of Citizenship
and Immigration), 2008 FC 571 at para 30; Wu v Canada (Minister of Citizenship
and Immigration), 2010 FC 1102 at para 16).
[40]
The RPD also erred in
finding that the Applicant would not face a serious possibility of persecution
if returned to Sri Lanka, because the RPD conducted a selective analysis of the
documentary evidence (Toth v Canada (Minister of Citizenship &
Immigration), 2002 FCT 1133 at para 26 (Fed TD); Sivabalaretnam v Canada
(Minister of Citizenship and Immigration)(1999), 86 ACWS (3d) 580, 1999
CanLII 7598 at paras 3-4 (FC); Urrea Bohorquez v Canada (Minister of Citizenship
and Immigration), 2011 FC 808 at paras 11-13; Bibby-Jacobs v Canada (Minister
of Citizenship and Immigration), 2012 FC 1176 at para 13). The RPD relied
on excerpts of a UNHCR document, but made no mention of passages from the same
document indicating that male Tamils originally from the North of Sri Lanka still face a serious possibility of persecution if returned to Sri Lanka. The RPD also
failed to refer to additional documentary evidence to this effect, and
therefore erred by ignoring relevant documentary evidence that directly
contradicts the conclusion reached (Orgona v Canada (Minister of Citizenship
& Immigration), 2001 FCT 346 at para 31 (Fed TD); Cepeda-Gutierrez v
Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35, 1998
CanLII 8667 at para 17 (FC); Toriz Gilvaja v Canada (Minister of Citizenship
and Immigration), 2009 FC 598 at para 38; Campos Quevedo v Canada (Minister
of Citizenship and Immigration), 2011 FC 297 at para 8; Packinathan v
Canada (Minister of Citizenship and Immigration), 2010 FC 834 at para 9; Goman
v Canada (Minister of Citizenship and Immigration), 2012 FC 643 at para
13).
[41]
The Applicant says
the RPD also misstated the facts when it characterized the Applicant as “a Tamil
male from Colombo, Sri Lanka.” Rather, the Applicant is originally from
northern Sri Lanka and spent less than a month of his life in Colombo. The RPD
erred again when it found that he did not fit into the category of those who
would face a risk of detention in Sri Lanka due to their connection to the
LTTE. In fact, the documentary evidence states 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” (UNHCR Eligibility Guidelines for Assessing the
International Protection Needs of Asylum-Seekers from Sri Lanka, 5 July 2010,
quoted in Applicant’s Record at p. 401). As well, while the RPD found that Tamils were not being targeted solely
on the grounds of their ethnicity, the documentary evidence established that
such targeting was indeed taking place (Applicant’s Record at p 413).
[42]
With respect to the
RPD’s sur place finding, the Applicant submits that the RPD erred in
determining that he had not become a refugee sur place because there was
no evidence that all passengers of the MV Sun Sea had LTTE connections.
Furthermore, the RPD applied the incorrect test when it stated that “[i]f in
future, the Sri Lankan government becomes aware that the claimant traveled to
Canada on the Sun Sea, I find on a balance of probabilities, that he will not
face any heightened risk as a result of this travel.”
[43]
The Applicant submits
that the RPD further erred by finding that “the Sri Lankan government would not
perceive the claimant to be a member or supporter of the LTTE on the basis of
his travel on the MV Sun Sea.” In support of this assertion, the Applicant
relies on his written submissions before the RPD, which contain excerpts of an
Amnesty International report and multiple news articles that refer to
passengers’ suspected links to the LTTE.
[44]
The RPD also erred by
holding that the Applicant’s travel on the MV Sun Sea did not place him
within a particular social group, the Applicant says, as his claim is based on
his perceived political opinion as a Tamil originally from the North of Sri
Lanka and a passenger on the MV Sun Sea.
[45]
Finally, the RPD
erred when it found that “victims of crime have no nexus to the Convention.”
The Applicant submits that the concepts of crime and persecution are not
mutually exclusive, and that if a person is attacked because the attacker does
not like the person’s political belief, this constitutes both a crime and
persecution. In the present case, the Applicant was victimized by a political
group with a political agenda, the EPDP. The RPD erred by failing to consider
that if this group funds its political activities through extortion, then any
refusal or reluctance to submit to extortion demands would be considered an
indication of opposition to the group’s political agenda.
[46]
In light of the
above, the Applicant submits that his fear of the EPDP is linked to the
Convention ground of perceived political opinion, and failing to analyze this
aspect of his claim under section 96 constitutes an error (Ismaylov v Canada
(Minister of Citizenship & Immigration), 2002 FCT 30 at para 9 [Ismaylov];
Clermont v Canada (Minister of Citizenship and Immigration), 2010 FC 848
at paras 3-4 [Clermont]). As well, a finding that a risk is experienced
generally does not prohibit a finding of persecution on the basis of one of the
Convention grounds (Dezameau v Canada (Minister of Citizenship and
Immigration), 2010 FC 559 at paras 23, 31) and importing a consideration
that is unique to section 97 into a section 96 claim constitutes a further
error (Josile v Canada (Minister of Citizenship and Immigration), 2011
FC 39 at para 11).
[47]
Moreover, the
Applicant argues, the RPD’s conclusion on this issue was contradictory. The RPD
erred by stating that the Applicant’s risk was personalized, but also
generalized because it is faced by Sri Lankans in general.
[48]
In view of these
alleged errors, the Applicant submits that the Decision should be set aside and
the matter referred back to a differently constituted panel of the RPD for
redetermination.
The Respondent
[49]
The Respondent
submits that the RPD applied the correct legal tests and the Decision is
reasonable. The RPD’s consideration of the evidence was balanced and well
explained; it did not engage in an egregious case of erroneous fact finding (Khosa,
above, at para 118). Rather, the Applicant is attempting to have the Court
reweigh the evidence.
[50]
Reasons do not have
to be perfect or comprehensive or “identify all of the facts which form the
basis” for the conclusion. Rather, “if the reasons allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes, the Dunsmuir
criteria are met” (Newfoundland and Labrador Nurses' Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62 at para 16 [Newfoundland
Nurses]).
[51]
The Respondent
submits that numerous material contradictions and inconsistencies going to the
heart of the Applicant’s claim rendered the main allegations not credible. When
questioned about some of these contradictions, the Applicant did not provide
reasons for the discrepancies. Where the Applicant did provide an explanation,
it was found to be unsatisfactory by the RPD due to implausibilities and
inconsistencies with the documentary evidence. With respect to some findings,
the RPD noted that documentary evidence had not been provided. The credibility
findings were reasonable based on the evidence that was before the RPD.
[52]
The RPD correctly
considered whether the Applicant’s profile today puts him at risk in Sri Lanka and compared his profile to those who are at risk in Sri Lanka. The RPD cited the correct
legal tests for section 96 and section 97, i.e. whether there is a serious
possibility that he will be subjected personally to persecution, or that he
will be subjected personally to a risk to his life, a risk of cruel and unusual
treatment or punishment, or a danger of torture by government in Sri Lanka. The RPD first found a lack of nexus under section 96 and then undertook a section
97 analysis in which it found that the risk faced is generalized.
[53]
In response to the
Applicant’s submission that the RPD did not refer to certain relevant passages
of the documentary evidence, the Respondent submits that the Applicant is
simply asking the Court to reweigh the evidence, which does not constitute a
legal basis for the Court to intervene (Brar v Canada (Minister of
Employment & Immigration), [1986] FCJ No 346 (CA); Ye v Canada
(Minister of Employment & Immigration), [1994] FCJ No 1233 (CA); Bains,
above at para 29; Bhandal v Canada (Minister of Citizenship and
Immigration), 98 ACWS (3d) 1085, [2000] FCJ No 1173 (TD)). Relying on Newfoundland
Nurses, above, the Respondent argues that when the Decision is read as a
whole, there is no reviewable error.
[54]
With regard to the sur
place claim, the Respondent submits that there was no evidence to support
an allegation that the Applicant would be perceived as an LTTE member or
supporter simply because he was a passenger on the MV Sun Sea. In the
absence of such evidence, there is nothing on which to ground his claim. The
RPD did not err in its application of the sur place test.
[55]
Finally, the Respondent
submits that extortion targets are generally chosen based on perceived ability
to pay. In this case, there was insufficient evidence produced to show either
that the Applicant would be targeted because of perceived wealth, or that such
targeting if it did occur would have a nexus to a Convention ground. All crimes
committed by the EPDP do not become political based on the agenda of the group,
and the allegation that the Applicant was targeted for any political opinion is
unfounded and speculative.
The Applicant’s Reply
[56]
The Applicant states
that articulating the correct test elsewhere in the reasons does not cure the
errors committed by the RPD. He cites Sekeramayi v Canada (Minister of Citizenship and Immigration), 2008 FC 845 and Paramsothy v Canada (Minister of Citizenship and Immigration), 2012 FC 1000, where the Board was
found to have applied inconsistent standards of proof.
[57]
The Applicant says he
is not seeking a re-weighing of the evidence, but rather is arguing that the
RPD erred in law by reading selectively from the documentary evidence that was
before it, and by ignoring relevant evidence that directly contradicts the
conclusion that it reached.
[58]
Finally, the
Applicant does not fear extortion per se, but rather the persecutory
consequences of a refusal to accede to extortion demands, which is clearly
connected to the Convention ground of political opinion.
The Respondent’s Further Submissions
[59]
The Respondent says
that the Applicant’s allegation of persecutory consequences to extortion is
unclear and is not supported by the evidence. The Applicant failed to establish
any political connection to the alleged extortion and therefore the RPD’s
finding was reasonable.
[60]
The Respondent
reiterates that, on a balance of probabilities, the RPD applied the correct
legal tests. The RPD only used the phrase “heightened risk of return” in
particular contexts and as a description, not a test.
ANALYSIS
[61]
In my view, in the
present case, the RPD’s assessment of the Applicant’s sur place claim
alone is sufficiently unreasonable that it requires the matter to be returned
for reconsideration.
[62]
The RPD says there is
insufficient evidence to show that the Sri Lankan authorities will have
knowledge that the Applicant was a passenger on the MV Sun Sea. At the same time, the RPD acknowledges that the Applicant like “all
persons entering Sri Lanka, will be questioned”:
If the Sri Lankan authorities perceive a returnee to have links to the
LTTE, or other crimes, such person would likely be detained and unfortunately,
all detainees in Sri Lanka, and not just the Tamils, may be victims of abuse of
power from Sri Lankan police or CID.
[63]
Notwithstanding this
finding, the RPD concludes that the Applicant will not “face any heightened
risk as a result of his travel”:
[119] Based on the foregoing, I have
insufficient evidence to find that the claimant would be presumed to have or
had ties to the LTTE by the Sri Lankan government simply because he was a
passenger on the MV Sun Sea. If in future, the Sri Lankan government becomes
aware that the claimant traveled to Canada on the Sun Sea, I find on a balance
of probabilities, that he will not face any heightened risk as a result of this
travel.
[64]
As the RPD points
out, and relying upon Canada (Minister of Citizenship and Immigration) v
B380, 2012 FC 1334, “travel on the M/V/ Sun Sea does not make a
passenger on that ship a member of a particular social group.” It is unclear
whether the RPD means to exclude the Applicant from section 96 protection on
the basis of an insufficient nexus. However, the Applicant’s claim for
protection involved his being a young Tamil male from the North (ethnicity) and
a perceived, or imputed connection with the LTTE (political opinion). This Court
has held that this can constitute sufficient nexus. See Canada (Minister of Citizenship and Immigration) v B420, 2013 FC 321 at paras 18-19,
21; and Canada (Minister of Citizenship and Immigration) v A068,
2013 FC 1119.
[65]
The fact that the
Applicant has been cleared of any suspicion of LTTE connections in the past
does not deal with the sur place claim, although it has some relevance
to that claim. The RPD was obliged to consider a forward-looking sur place
claim based upon a perceived LTTE connection as a result of his arriving in Canada on the MV Sun Sea. The Applicant claimed protection based upon
ethnicity and political opinion and counsel made submissions dealing with these
grounds. The RPD was also obliged to consider the section 97 risks associated
with the return.
[66]
As the RPD confirms,
if the Applicant is returned, he will be questioned and, when he is questioned,
he will have to reveal how he arrived in Canada. The RPD disposes of this issue
by saying that there is insufficient evidence “to find that the claimant would
be presumed to have or had ties to the LTTE by the Sri Lankan government simply
because he was a passenger on the MV Sun Sea.” But, as the RPD concedes,
everyone is questioned on arrival and Tamils are victims of “abuse of power
from the Sri Lankan police or CID.”
[67]
The evidence before
the RPD was that:
The Sri Lankan Ministry of Defence has
accused the passengers of the MV Sun Sea and Ocean Lady of having links to the
LTTE suggesting the passengers included leaders, members and their families.
Amnesty International believes that individuals suspected of belonging to, or
having links to, the LTTE face a real risk of torture or other ill-treatment if
forcibly returned to Sri Lanka.
Amnesty International concerns with
respect to forced returns to Sri Lanka for passengers of the Ocean Lady and MV
Sun Sea, June 12, 2012, Applicant’s Record at p. 342.
[68]
The RPD – with other
claimants – has found that those returning with connections to the MV Sun
Sea or the MV Ocean Lady are at a risk of torture for
perceived LTTE connections, even when no prior connection has existed, and this
Court has endorsed such decisions. See, for example, Justice Blanchard’s
analysis in Canada (Minister of Citizenship and Immigration) v A032,
2013 FC 322 at para 17 and Canada (Minister of Citizenship and
Immigration) v B377, 2013 FC 320.
[69]
There was significant
evidence in this case that Sri Lankan authorities are fully cognizant of the
connections between the MV Sun Sea and LTTE membership. This doesn’t
mean they believe all MV Sun Sea passengers have LTTE links, but all
returnees are suspects and are questioned on arrival and failed refugee
claimants are questioned more closely. It is inevitable that the authorities
will ask the Applicant how he got to Canada, and this will immediately identify
his association with the MV Sun Sea. This means that he will be
detained for some amount of time to ascertain whether, for instance:
a.
he is an LTTE member;
b.
he has organized for
the LTTE abroad; and
c.
he possesses LTTE
intelligence.
Hence, upon his return, the Applicant will be detained and interrogated
about possible LTTE connections. Amnesty International says that individuals in
the position of the Applicant face a real risk of torture or other
ill-treatment if returned to Sri Lanka. The RPD’s finding that there is
“insufficient evidence to show that the Sri Lankan authorities will have the
knowledge that the claimant was a passenger on the Sun Sea” and that “there was
insufficient evidence that the Sri Lankan government would treat the claimant
any different than any other returnee to the country . . .” in my view simply
ignores the evidence and the reality of what the Applicant faces.
[70]
Notwithstanding the
credibility issue regarding the Applicant’s problems with the authorities
before he left Sri Lanka, and his own evidence that he has no past association
with the LTTE, there is no doubt that he is a young Tamil male from the North
(and not Colombo as the RPD finds) who arrived in Canada on the MV Sun Sea.
The Applicant will be detained and interrogated upon his return because of his
association with the MV Sun Sea. Although the RPD concludes that Tamils,
as well as others, “may be victims of abuse of power from Sri Lankan police or
CID,” the RPD shies away from a consideration of what will happen to the
Applicant when he is interrogated in the face of evidence that Sri Lankan
authorities are very interested in links between the MV Sun Sea
passengers and the LTTE, and evidence from Amnesty International that
individuals who are “suspecting of belonging to, or having links to the LTTE
face a real risk of torture or other ill-treatment if forcibly returned to Sri
Lanka.” These risks exist not just for those who do have links, but for those
suspected of having links. The RPD appears to assume that the Applicant might
not even be identified as a passenger on the MV Sun Sea (which he will)
and that, even if he is, he won’t be treated “any different than any other
returnee . . . given his complete lack of past association with the LTTE.” In
my view, the evidence does not support these findings. The Decision is unreasonable
on this ground alone and requires reconsideration.
[71]
Counsel agree that
there is no question for certification and the Court concurs.
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