Docket:
IMM-1556-13
Citation: 2014 FC 330
Ottawa, Ontario, April 3, 2014
PRESENT: The Honourable Mr. Justice Barnes
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BETWEEN:
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L.S.
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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
challenging a decision of the Refugee Protection Division of the Immigration
and Refugee Board (Board) which denied the Applicant’s claim to refugee
protection. The identity of the Applicant is protected under the terms of a
confidentiality Order.
[2]
The Applicant is a 32-year-old Tamil male from Sri Lanka who came to Canada on October 17, 2009 aboard the M.V. Ocean Lady.
[3]
The Applicant asserts a number of errors in the
Board’s analysis. He argues that the Board failed to consider the likelihood
of torture being used to extract information about a perceived relationship to
the Liberation Tigers of Tamil Eelam (LTTE). Having been a passenger on the M.V.
Ocean Lady, it is said that the Sri Lankan authorities would assume a
connection to the LTTE and act accordingly. It is also argued that the Board
erred by failing to refer to an earlier Board decision that had found a risk of
torture in the same circumstances. Finally, the Applicant contends that the
Board applied an incorrect standard going beyond the mere possibility of
persecution and otherwise carried out an "illogical analysis ". These
are all evidence-based issues that must be reviewed under the standard of
reasonableness.
The Board’s Decision
[4]
The Board found that the Applicant did not have
a well-founded fear of persecution in Sri Lanka. Although the Board
acknowledged that he is a relatively young Tamil male from northern Sri Lanka, it found nothing in the evidence that actually linked him to the LTTE. Indeed,
the Applicant consistently maintained that he had no connection to the LTTE.
The Board noted that the Applicant had not encountered "significant
difficulties" in Sri Lanka. He was able to attend school, graduate from
university, run a business and find successful NGO employment during the period
of armed conflict.
[5]
When the Applicant left Sri Lanka in 2009 bound for Thailand, he did so lawfully and openly travelling on a valid Sri Lankan
passport. The Board considered the potential for risk arising from a return to
Sri Lanka as a failed asylum seeker. After reviewing "reliable and
trustworthy" country condition reports from the United Kingdom, Australia
and the United Nations High Commissioner for Refugees (giving it "a great
deal of weight"), the Board found that only those with perceived or actual
associations to the LTTE faced a risk of abuse or torture. The Board concluded
that, based on the Applicant’s particular circumstances, he was not a person
who would be perceived to be linked to the LTTE by Sri Lankan authorities.
[6]
The Board went on to examine the Applicant’s sur place
claim which was based on his acknowledged transit to Canada aboard the M.V.
Ocean Lady and his returning status as a failed asylum seeker.
[7]
The Board examined the country condition
evidence dealing with the experiences of other failed asylum seekers who had
recently returned to Sri Lanka. It noted that all returning Tamils are
subjected to screening measures including airport interviews and background checks
usually taking a few hours or, in a few cases, up to one to two days.
Generally those, like the Applicant, who left Sri Lanka with genuine documents
had "little difficulty passing through airport security".
[8]
The Board did acknowledge a heightened risk of
torture for those with connections to the LTTE. Those at particular risk were said
to be Tamils with "an actual or perceived association with the LTTE" or
with a history of opposing the government. The Board found, on a balance of
probabilities, that the Applicant did not fit that risk profile.
[9]
In response to the argument that the Applicant’s
connection to the M.V. Ocean Lady was such that he would be perceived to
be an LTTE supporter, the Board made the following findings:
a)
the Sri Lankan authorities had publicly
acknowledged that not all of the passengers on the M.V. Ocean Lady were
connected to the LTTE;
b)
the Sri Lanka government did not know the personal
identities of everyone on board but they may ultimately come to know about the
Applicant;
c)
considering the risk to the Applicant if his
connection to the M.V. Ocean Lady did become known to the authorities,
the Board found that no meaningful risk was present based on the following
analysis:
[37] Although Sri
Lankan authorities may come to know how the claimant came to Canada, the panel has considered if, in fact, the claimant faces an increased risk of persecution by
having travelled aboard the Ocean Lady. Would Sri Lankan authorities
perceive the claimant to have LTTE links simply by virtue of his having
travelled on the ship? If so, then does this fact suggest that none of the many
migrants who have left Sri Lanka and arrived in Canada and claimed refugee
protection but did not arrive by ship are believed by Sri Lankan authorities to
have no LTTE connections? Not likely. The arrival of 76 and 491 individuals
aboard two different ships garnered a great deal of media attention, unlike the
many others who have arrived by other means, individually and with little
fanfare. What then determines when and on what basis Sri Lankan authorities
consider individuals to be members of or associated with the LTTE? The panel
concludes that it is their past history in Sri Lanka, unless their activities
since leaving the country suggest otherwise. Those, such as the claimant, with
little recent profile with Sri Lankan authorities, have been allowed to leave
the country with no difficulty. Why now would they be arrested, detained, and
tortured for simply having arrived by ship, unless there were good reasons for
believing they had substantive LTTE connections? The claimant insists that he
has no links to or sympathies with the LTTE. He has not had any problems with
the authorities. He has not been involved with or supportive of any pro-LTTE
organization during his time in Canada. The panel finds that there is
insufficient credible evidence before it to suggest that since he fled Sri Lanka, other than his presence on the Ocean Lady, the Sri Lankan government has
any further reason to believe he is a member or supporter of the LTTE.
d)
if Sri Lankan authorities presumptively
suspected the Applicant, they would take some comfort from the fact that
Canadian authorities had found nothing to link him to the LTTE.
[10]
The Board concluded, on a balance of
probabilities, that, given the Applicant’s history in Sri Lanka, the authorities would not perceive him to be member or supporter of the LTTE simply on
the strength of his transit to Canada aboard the M.V. Ocean Lady.
Issue
[11]
Did the Board err in its treatment of the
evidence or the law?
Analysis
[12]
The Applicant argues that his connection to the M.V.
Ocean Lady placed him in a different and higher risk category than other
failed Tamil asylum seekers. The argument is that the Board erred by failing
to appreciate this distinction and, in particular, by failing to recognize the
propensity of the authorities to use torture to extract information from those
it perceives to be connected to the LTTE. The Board rejected this argument by
finding that the Applicant’s connection to the M.V. Ocean Lady did not
put him uniquely at risk.
[13]
The Board relied primarily on the recent
experiences of returning Tamils and found that they were not being abused. It
found no reason to conclude that a person aboard the M.V. Ocean Lady
would be treated differently than other returning Tamils with similar
profiles. This was a finding that was reasonably open to the Board on the
evidence before it. Arguably, the best evidence of possible risk would come
from the actual experiences of those with similar profiles – in this case Tamil
males with no actual connection to the LTTE. It was not unreasonable for the Board
to assume that all Tamil males of a certain age returning involuntarily to Sri Lanka would be perceived with some degree of suspicion. That is so because LTTE
fighters and supporters were strongly motivated to leave Sri Lanka and they adopted a number of strategies to escape. According to the Board, the means of
exit would not displace a general underlying concern that some returning Tamils
were likely LTTE fighters or supporters. If the Applicant’s argument had merit
one could reasonably expect to see the frequent use of torture as a means of
extracting information from anyone considered to be suspicious (i.e. all young
Tamil males returning as failed asylum seekers). The Board found no evidence
to support such conduct. It, therefore, declined to place the Applicant into a
higher risk category. While a different outcome could have been obtained on
the same record, that alone does not undermine the reasonableness of the
Board’s decision. I can identify nothing in the Board’s analysis of the sur place evidence that renders its
decision unreasonable.
[14]
The Applicant argues that the Board erred by
failing to cumulatively assess the relevant risk factors. Instead, the Board
is accused of looking at each risk element in isolation of the others.
[15]
If I was convinced that the Board had erred in
the manner described, I would not hesitate to set the decision aside. But
there is nothing in the Board’s reasons to suggest that it failed to consider
the evidence in its proper context. The decision carefully examines and weighs
the competing factors and concludes in the following way:
[40] After carefully
considering the arguments and evidence regarding the consideration of the
claimant as a refugee sur place, the panel
finds, on a balance of probabilities, that the Sri Lankan government would not
perceive the claimant to be a member or supporter of the LTTE simply on the
basis of his travel on the Ocean Lady given his history in Sri Lanka
before coming to and after arriving in Canada.
[16]
The Board’s decision seems to me to
appropriately conform to the standard described in KK v Canada, 2014 FC 78, [2014] FCJ No 74, where Justice Peter Annis stated:
51 I also have
some difficulty seeing how a decision can be set aside on the basis that the
Board considered all of the evidence but did not take consideration of its
cumulative impact, unless there is a clear statement or grounds to that effect,
which would be highly unlikely. It is one thing to criticize a decision for not
having considered an important relevant factor or having considered an
irrelevant factor, because these situations can be determined from a review of
the decision. It is quite another I would think to conclude that despite having
considered a factor, a decision maker did not consider that factor along with
all the other factors. It is not evident how one can demonstrate such a
conclusion other than by the decision itself, and that would just mean the
Court substituting its opinion for that of the Board. Such an intervention by
the court would also appear to contradict the Supreme Court's direction in Newfoundland
Nurses, which provides a considerable degree of latitude to an
administrative tribunal as to the manner in which it arrives at its decisions.
[17]
The Applicant contends that the Board had an
obligation to explain why it came to a different assessment of the risk than
other panels dealing with claimants who were passengers on either the M.V.
Sun Sea or M.V. Ocean Lady. In particular, he relies on the
decision of the Board in its file No. VBO-03306 (contained in the Certified
Tribunal Record at pp 1425-1445) where the member found as follows:
[61] LTTE suspects
continue to be subjected to prolonged incommunicado detention without charge or
trial, all of which increases the risk of torture. Many LTTE suspects are held
in a variety of irregular, unofficial or secret places of detention and have
been victims of enforced disappearances and extra-judicial killings?
[62] What all of this
means for the claimant, a claimant who does have information about human smuggling
as a passenger on the MV Sun Sea, and who may have information on LTTE
members who were on board the boat, is that he faces more than a mere
possibility of detention and torture if he were to return to Sri Lanka. The detention
might occur at the airport or at some later time.
[Footnotes omitted]
[18]
Counsel for the Applicant acknowledges that the
Board had no obligation to follow earlier panel decisions involving similarly
situated individuals. Nevertheless, it is argued that the Board had an
obligation to explain why it differed from at least one other panel that had
concluded that a Tamil male aboard the M.V. Sun Sea was at risk of persecution
in Sri Lanka.
[19]
I do not accept the proposition that the Board
has a legal duty to provide reasons for differing from other panel decisions in
like cases. If there is no obligation to follow other decisions and if
conflicting outcomes are to be expected and accepted in administrative
decision-making, there cannot be a responsibility to explain why a contrary
decision was not followed. Furthermore, by providing its own reasons, the
Board is implicitly explaining why and where it differs from the risk
assessments of other panels. While I accept that inconsistent outcomes among
factually indistinguishable cases may appear to the persons involved to be
arbitrary, that is the price to be paid for deference.
[20]
To the extent that this view may differ from the
decisions of some of my colleagues, I decline to follow them. Instead I adopt
the analysis of Justice Catherine Kane in B198 v Canada, 2013 FC 1106, [2013]
FCJ No 1198 citing with approval from the decision of Justice Judith
Snider in PM v Canada, 2013 FC 77, [2013] FCJ No 136:
66 There is a
great deal of jurisprudence dealing with judicial review of Board decisions
made with respect to refugee claimants who were passengers on the MV Sun Sea.
Counsel is justified in noting some earlier decisions that upheld
determinations of the Board which found that being a passenger on the ship was
sufficient to base a claim for protection or that being a passenger was equated
with membership in a particular social group and that this membership provided
the required nexus. However, despite what appear to be different approaches to
similar situations, no two claims are the same. The role of the Court is to
consider the reasonableness of the Board's decision, not to impose its own
determination.
67 As noted by
Justice Snider in PM:
[16] In support of
his argument, the Applicant provided me with a number of Board decisions in
which different panel members of the Board accepted M/V Sun Sea
claimants as Convention refugees, allegedly following the Applicant's proposed
line of reasoning. The problem is that these Board decisions do not have
precedential value - for very good reason. The individual facts and records in
each case must be examined. For example, in one of the cases referred to, the
panel concluded that the claimant's profile was one suspected of having links
with the LTTE, thereby exacerbating the risk on his return.
[17] Moreover, and
more importantly, the decision is reviewable on a standard of reasonableness.
It is possible for different conclusions to be reached on similar facts. I
acknowledge that the Applicant put forward a rational line of reasoning for
finding that the Applicant was at risk because of his passage on the M/V Sun
Sea. However, that does not mean that the line of reasoning followed by the
Board is unreasonable. The existence of a range of possible outcomes is the
hallmark of the reasonableness standard and is the foundation of the deference
owed to decision makers. Whether this Applicant would face more than a mere
possibility of persecution is a factual question to be determined by the Board.
While I or another panel member might have come to a different conclusion, the
decision of this Board was reasonably open to it on this particular evidentiary
record. The Court should not intervene.
Accordingly I find
that the Board did not err by failing to cite other Board decisions that ran counter
to its own risk analysis.
[21]
For the foregoing reasons, this application is
dismissed. Neither party proposed a certified question and no issue of general
importance arises on this record.
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