Docket: IMM-11476-12
Citation:
2014 FC 608
Ottawa, Ontario, June 24, 2014
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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B381
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Applicant
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and
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THE MINISTER OF CITIZENSHIP & IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of
the decision of the Refugee Protection Division of the Immigration and Refugee
Board (Board), dated October 10, 2012, in which it found that the Applicant was
not a Convention refugee nor a person in need of protection pursuant to section
96 or 97, respectively, of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA). This application is brought pursuant to section 72 of the
IRPA.
Background
[2]
The Applicant is a 34 year old male citizen of Sri Lanka who was a passenger on the M.V. Sun Sea, one of two ships bearing Tamil
asylum-seekers that arrived in Canada in 2009 and 2010. He claimed protection
as a Convention refugee based on fear of persecution for reasons of his race,
membership in a particular social group and political opinion at the hands of
the army, the police, the Liberation Tiger of Tamil Eelam (LTTE) and the
pro-government militant groups. He also claimed that he was a person in need
of protection because he faced a risk to life, cruel and unusual treatment or
punishment, and torture.
[3]
The Applicant claimed that in 1996, when
returning from a displaced persons refugee camp, he was detained for 40 days by
the army. During this time he was questioned about his connections to the LTTE
and accused of being a LTTE supporter. He was kicked, his hands were tied
behind his back and he was beaten with a plastic pipe filled with sand. When
his family paid money, he was brought to court and was released as there was no
evidence for charging him.
[4]
In 1996, the army took control of Jaffna and tried to implement measures to prevent infiltration by the LTTE. In 2002, the
LTTE was permitted to enter some army controlled areas. It recruited,
abducted, abused and extorted money from people, including his parents. In
2003, the Applicant traveled to Saudi Arabia to work. After his return to Sri Lanka, he got married in 2007.
[5]
From 2007 to 2009 the Applicant worked in Malaysia. In mid-2009 he returned to Sri Lanka as the war had ended and the LTTE
reportedly defeated. He claimed that in April 2010, the Eelam People’s
Democratic Party (EPDP) and army intelligence came to his home and
questioned him about his connections to the LTTE. They stated that they had
received information that escaped LTTE cadres had come to his home and that he
had arranged accommodations for them. He was told that he must identify the
people he had helped and those who asked him to help them, failing which he
would be detained. They also asked about his visits to Malaysia. They said they would return soon and he must give them reasonable answers.
[6]
The Applicant claimed that in May 2010, the EPDP
again came to his home stating they had received information that he assisted
the LTTE. They informed him that this was serious and that he would be arrested
soon unless he paid them 3 million RS. The Applicant indicated that he did not
have any money. He was provided two months to pay, failing which he would be
arrested.
[7]
The Applicant claimed that he did not want to
pay the money and arranged for an agent who took him to Thailand on June 1, 2010 where he boarded the M.V. Sun Sea on July 5, 2010 and arrived in Canada on August 13, 2010. The Applicant claims that his wife has informed him that, after
his departure, the EPDP returned to demand money and the army came and
threatened his arrest.
Decision Under Review
[8]
The Board found that the Applicant was not a
Convention refugee pursuant to section 96 of the IRPA nor or was he a person in
need of protection pursuant to section 97. The determinative issues were the
credibility of the Applicant’s subjective fear of persecution and whether his
prospective fear was well-founded.
[9]
The Board stated that it considered the changing
country conditions, the Applicant’s risk profile and whether he would be
personally subjected to a risk of life pursuant to sections 96 and 97 of the
IRPA. Further, whether he had established that as a failed asylum seeker or
passenger aboard the M.V. Sun Sea he was a refugee “sur place” as
described in the United Nations High Commission for Refugees (UNHCR) Handbook.
[10]
The Board found that there has been a positive
change in Sri Lanka since the end of the war. The 2010 UNHCR Guidelines advise
that Tamils from the north of Sri Lanka are no longer presumptively eligible
for refugee protection, but must be considered on their individual merits.
Persons suspected of having links with the LTTE were, however, listed as having
a potential risk profile.
[11]
The Board noted that the Applicant was detained
once in Sri Lanka in 1996 and accused of being a LTTE supporter. He was
released by a court because there was no evidence for charging him. He had also
traveled in and out of Sri Lanka with his own documents without any problems. He
was in Saudi Arabia from 2003 to 2006, Malaysia from June 2007 until mid 2009
and, while he was questioned by intelligence upon his return, he was never
detained or arrested.
[12]
Further, the Board noted that the country
documents confirm that after the war many Tamils were questioned and
investigated regarding potential links to the LTTE. In that regard, the Board
accepted that his family home may have been checked in 2010. However, if, as
he alleged, he was suspected of having information and names of escaped LTTE
cadres, the Applicant would have been immediately arrested in April 2010 when
the army intelligence or EPDP first questioned him and not told that he must give
“reasonable answers” when they returned. He fled in June 2010 after the EPDP
tried to extort money from him. The Board did not accept that the Applicant
was told in 2010 that he was suspected of helping the LTTE and found that he
was not a person of interest to the army or para militants as having ties to
the LTTE.
[13]
The Board noted that there were a number of
significant credibility concerns with the Applicant’s allegations which were
not adequately explained and which it described in detail in its reasons. As
the Applicant has not challenged the Board’s credibility findings, these
reasons are not detailed in this summary of its decision.
[14]
Based on its credibility findings, the Board
found that, other than the 1996 detention, the other alleged events had not
occurred. The Board acknowledged that while the situation has improved for
those previously identified as having ties to the LTTE, challenges still
remained and that some sources allege that perceived connections have resulted
in detention and torture. However, because the Applicant did not have a real or
perceived link to the LTTE, he would face minimal problems if returned (Sivalingam
v Canada (Minister of Citizenship and Immigration), 2012 FC 47).
[15]
The Board found that the Applicant’s ability to
pass through checkpoints and security without difficulty or detention when
traveling from the northern province to Colombo and in and out of the country
was relevant to his potential risk profile. The Board found, on a balance of
probabilities, that the Applicant had attempted to bolster his refugee claim by
giving false testimony about his experiences in an effort to fit into the UNHCR
risk profile of persons suspected of having ties to LTTE. There was
insufficient credible and trustworthy evidence that after 1996 he came under
army suspicion. Based on the change of country conditions and as a cumulative
result of his undermined credibility, the Board found that there was no serious
possibility of the Applicant facing persecution as a Tamil male from the north
if he were to return to Sri Lanka.
[16]
As to risk, the Board found that the Applicant
faced only a generalized one. His evidence was that he left Sri Lanka in June 2010 because he did not want to pay the EPDP 3 million rupees. He
believed the EPDP were looking for him because he worked abroad and they are
known to target such people and to physically abuse, torture and murder those
who do not pay. He stated that everyone in Sri Lanka fears this. The Board
found that the Applicant fears extortion by the EDPD and the consequences of
not adhering to their demands for money. The country evidence indicated that
the EPDP has, since the war, moved to criminal activities and targets anyone
who has money without regard for ethnicity. The Board found that the Applicant
was targeted for extortion for having worked abroad and not because he was
Tamil. It referred to jurisprudence which found that individuals who are
victimized more frequently because of perceived wealth or living in a more
dangerous area, or facing retaliation for non-compliance with criminal demands,
do not face a personalized risk removed from the subsection 97(1)(b)(ii) exception.
The extortion that the Applicant faced was related to the perception of his
wealth and his resulting fear did not amount to a nexus with a convention
ground. The risk of extortion by paramilitary groups perceived to have money
after returning abroad is prevalent and was therefore a generalized risk.
[17]
As to the Applicant’s status as a failed refugee
claimant returnee, the Board noted documentary evidence that returning Tamils
are subject to the same screening process for all persons returning to Sri Lanka
regardless of whether they are returning on a voluntary basis or as a failed
refugee claimant.
[18]
The Board noted that the Applicant had safely returned
to Sri Lanka after being abroad for long periods in the past. While there are
contradictory reports on treatment of refugees at Colombo’s Katunayake International Airport, it was clear that many Tamils are returning on a voluntary
basis and as failed refugee claimants. In 2011 and 2012 the UK returned charter flights of failed asylum seekers and, of those monitored in July 2011,
none were arrested or charged. In October 2011, the UNHCR assisted many Sri
Lankans voluntarily returning from abroad, and its participation suggested a
confidence that returnees would be safe. Non-voluntary returnees who were former
LTTE combatants and participants in the Information Counselling and
Reintegration Services Program experienced no significant challenges. Further,
an August 2011 CBSA report stated that Sri Lanka’s security situation continued
to improve and that CBSA was committed to continuing to monitor the treatment
of voluntary and escorted returnees.
[19]
While returnees with suspected ties with the
LTTE face increased surveillance, the Board was satisfied on a balance of
probabilities that the Applicant, as a failed refugee claimant of Tamil
ethnicity, could safety return to Sri Lanka and would not be sought after by
the government or para militants. There was no more than a mere possibility
that he would face persecution as a returning asylum seeker.
[20]
The Board then considered the Applicant’s sur
place claim. Having considered the evidence and submissions as to how he
would be viewed and, therefore, treated by the Sri Lankan authorities based on
how he came to Canada, it found that, on a balance of probabilities, he would
not be perceived to be a member or supporter of the LTTE based on being a
passenger on the M.V. Sun Sea.
[21]
It noted that the Minister had disclosed a
package of documents in reply to the Amnesty International (AI) documents dated
June 12 and 16, 2012. The Minister expressed concern about some of the
conclusions and statements made in the June 12, 2012 AI document. The Board
stated that it had been pointed out to it by the Respondent that, with careful
reading of the sources, there was a lack of supporting evidence for the
conclusions drawn. And, for the reasons previously set out, the Board stated
that when the Applicant left Sri Lanka he was not suspected of having links to
the LTTE. In addition to the Applicant’s lack of profile, and the statement by
the Sri Lankan High Commission that it will not automatically presume
passengers on the M.V. Sun Sea have ties with the LTTE, there was
insufficient credible evidence to conclude the Applicant faces more than a mere
possibility of persecution.
[22]
The Board found that the Applicant had not established
membership in a particular social group in accordance with Canada (Attorney
General) v Ward, [1993] 2 SCT 659, [1993] 2 S.C.R. 689 because he arrived in
Canada smuggled on a ship owned and operated by the LTTE. The Applicant may
face temporary detention and/or questioning on suspicion of his travel or
having ties to the LTTE or information about passengers. However, on a balance
of probabilities, he was not a sur place refugee simply because he
traveled on the M.V. Sun Sea. The Board considered whether the common
experience of the passengers would lead the authorities to impute a political
opinion to each passenger as an LTTE supporter, acknowledging that those
suspected of being LTTE members or supporters may still be at risk of
persecution as reported in the country documents. The Board accepted the
Respondent’s submissions that Sri Lankan authorities recognize the existence of
economic migrants aboard the LTTE M.V. Sun Sea human smuggling
operations. Further, that media reports, international terrorism experts, the
Canadian government and the Sri Lankan government took the position that the M.V. Sun Sea was a LTTE smuggling operation. However, it found that the
Applicant only learned of this after he arrived in Canada, and could not give a
detailed account about his fears in relation to how he arrived in Canada. There was no persuasive evidence that he knew about any LTTE aboard the ship.
[23]
While it will be known that he traveled on the M.V.
Sun Sea, there was no evidence that all passengers will be arrested and
persecuted as perceived LTTE supporters. Given his prior movements and
activities, there was no serious possibility that the Applicant would be
persecuted on suspicion of LTTE ties due to this presence on the M.V. Sun
Sea. The Board noted evidence where individuals smuggled by the LTTE and
abandoned in Togo were safely returned to Sri Lanka.
[24]
Finally, the Board considered compelling
reasons. It noted that while compelling reasons was not raised as an issue, the
Board had identified it at the hearing and the Respondent addressed it in
submissions. The Board found that the Applicant’s detention in 1996 would not
rise to the level of compelling reasons pursuant to the subsection 108(1)(e)(4)
IRPA exception. In any event, as subsection 108(1)(e) did not apply in these
circumstances, the precondition for the potential application of subsection
104(4) was not met.
Issues
[25]
In my view, the issues can be framed as follows:
1. Did the Board err
in its sur place claim by making a contradictory finding and selectively
analyzing the evidence?
2. Did the Board fail to consider
cumulative persecution under section 96?
3. Did the Board err in its
compelling reasons analysis?
Standard of Review
[26]
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 well-settled by past
jurisprudence, the reviewing court may adopt that standard (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 57 [Dunsmuir]; Kisana v Canada (Minister of Citizenship and Immigration), 2009 FCA 189 at para 18).
[27]
Prior jurisprudence has established that the
factual analysis undertaken for a sur place claim (M (P) v Canada (Minister of Citizenship and Immigration), 2013 FC 77 at para 5 (M(P)); Ganeshan
v Canada (Citizenship and Immigration), 2013 FC 841 at para 9; Dunsmuir,
above, at para 53). The standard of review for the Board’s compelling reasons
analysis is also reasonableness (Lici v Canada (Minister of Citizenship and
Immigration), 2011 FC 1451 at para 12).
[28]
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” (Dunsmuir, above, at
para 47; Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at para 59 [Khosa]).
ISSUE 1: Did the Board err in
its sur place claim by making a contradictory finding and selectively
analyzing the evidence?
Applicant’s Submissions
[29]
The Applicant submits that the Board erred in
the sur place aspect of his claim by selectively analyzing the evidence.
While it is entitled to provide greater weight to some evidence, it must
provide reasons for preferring that evidence to crucial, contradictory evidence
(Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration),
[1998] FCJ No 1425 (QL)(CA) [Cepeda-Gutierrez]; Francis v Canada (Minister
of Citizenship and Immigration), 2011 FC 1095; Alci v Canada (Minister
of Citizenship and Immigration), 2005 FC 675; Turner v Canada (Attorney
General), 2012 FCA 159). This is an error of law (Sinnathurai v Canada
(Minister of Citizenship and Immigration), 2005 FC 515; Cepeda-Gutierrez,
above; Garcia v Canada (Minister of Citizenship and Immigration), 2005
FC 807; Toriz Gilvaja v Canada (Minister of Citizenship and Immigration),
2009 FC 598; Neto v Canada (Minister of Citizenship and Immigration),
2007 FC 664; Villicana v Canada (Minister of Citizenship and Immigration),
2009 FC 1205; Bohorquez v Canada (Minister of Citizenship and Immigration),
2011 FC 808).
[30]
Recent jurisprudence does not support the
Board’s method of reviewing the evidence and has specifically discussed the
weight to be given to independent evidence (Kulasekaram v Canada (Minister of Citizenship and Immigration), 2013 FC 388; Canada (Minister of Citizenship
and Immigration) v B399, 2013 FC 260; Canada (Minister of Citizenship
and Immigration) v B377, 2013 FC 320).
[31]
The Applicant submits that the Board failed to
consider the evidence before it, including reports of Freedom from Torture and of
AI that clearly contradict its finding that returning asylum seekers would not
face persecution. The June 12, 2012 AI report entitled “Amnesty International
with respect to forced returnees to Sri Lanka for passengers of the Ocean Lady
and M.V. Sun Sea” (AI report) expressly identified a risk to all those on board
the M.V. Sun Sea based on the Sri Lankan government’s perception that
they are LTTE supporters. AI is a credible and reliable source (Mahjoub v Canada (Minister of Citizenship and Immigration), 2006 FC 1503 at paras 72-73; Sittampalam v Canada (Minister of Citizenship and Immigration), 2009 FC 65 at para 64 [Sittampalam]).
As the Board failed to consider the AI and the Freedom from Torture reports, it
committed a serious and reviewable error (Sittampalam, above). Further,
the report to which the Board did refer, being the Response to Information Request, LKA103815.E “Sri Lanka: Information on the Treatment of Tamil returnees to
Sri Lanka, including failed refugee applicants; repercussions, upon return, for
not having government authorization to leave the country, such as a passport” contained
conflicting statements which were ignored by the Board. The Board also had
evidence that confirmed that those suspected of LTTE support are at risk.
[32]
The Board also erred in its sur place analysis
by making contradictory findings which do not support its finding that the
Applicant was not at risk and, therefore, rendering the decision unreasonable (Amiragova
v Canada (Minister of Citizenship and Immigration), 2008 FC 64; Sobhesedgh
v Canada (Minister of Citizenship and Immigration), 2003 FCT 570). Its
finding that those suspected of having ties with the LTTE remain at risk and
that the Applicant may be detained and questioned “on suspicion” of his travel
or having ties to the LTTE cannot reasonably coincide with a finding that he is
not at risk. There is a clear difference between being “screened” at the
airport and questioning based on “suspicion”. The Applicant was suspected of
LTTE connection upon arrival in Canada and similar suspicions on the part of
the Sri Lankan authorities could occur upon his return to Sri Lanka, which
would have remarkably different consequences (B027 et al v Canada (Minister
of Citizenship and Immigration), 2013 FC 485).
[33]
The Board compared the Applicant’s previous safe
returns to Sri Lanka to his return after travel on the M.V. Sun Sea (Canada (Citizenship and Immigration) v B272, 2013 FC 870). The Board’s
failure to distinguish this factual situation from previous returns is
unreasonable and contradictory.
[34]
The Applicant submits that the Board cannot
reasonably find that the Sri Lankan government’s suspicions of him will be
satisfied by asking a few questions as the documentary evidence indicates that
they obtain information through torture. Further, his previous experience in
1996, which was accepted by the Board, establishes that there need not be
evidence upon which to detain and torture a person suspected of supporting the
LTTE.
[35]
The Applicant submits that the Board’s reasons
must be “sufficiently clear, precise, and intelligible
that a claimant may understand why his claim has failed” (Sinnathamby
v Canada (Minister of Citizenship and Immigration), 2005 FC 188; Hilo v
Canada (Minister of Employment and Immigration) (1991), 130 NR 236, [1991]
FCJ No 228 (CA) (QL); Newfoundland and Labrador Nurses’ Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland
and Labrador Nurses] ).
Respondent’s Submissions
[36]
The Respondent submits that the Board’s findings
were clear and comprehensive. Reasons are not a stand-alone basis for quashing
a decision, but must be read together with the outcome (Newfoundland
and Labrador Nurses, above, at paras 12, 14, 18).
[37]
The Respondent submits that the Board did not
err in its assessment of the evidence, but, rather that the Applicant seeks to
have the evidence reweighed. The Board is not required to refer to every piece
of contradictory evidence and to explain how they dealt with it (Florea v
Canada (Minister of Citizenship and Immigration), [1993] FCJ No 598 (CA)
(QL); Hasan v Canada (Minister of Employment and Immigration), [1992]
FCJ No 946 (CA)(QL); Kis et al v Canada (Minister of Citizenship and
Immigration), 2012 FC 606 at para 11; Kaur v Canada (Minister of
Citizenship and Immigration), [2002] FCJ No 190 at para 22 (TD)(QL)[Kaur]).
Further, administrative tribunals are to be accorded deference in weighing
evidence and there may be a number of possible, reasonable conclusions (Khosa,
above, at paras 61, 62, 67; Dunsmuir, above, at para 47).
[38]
The Board acknowledged the contradictory
evidence regarding the risk to returnees but was not convinced that the thresholds
in sections 96 and 97 were met, which finding was open to it. The Applicant
did not fit the profile of those at risk in Sri Lanka.
[39]
The Respondent states that the Board
acknowledged the AI report, but did not consider it to be determinative as there
was a lack of supporting evidence for the conclusions drawn. Further, the High
Commissioner for Sri Lanka publicly indicated that not all persons traveling on
the ship have ties to the LTTE. Persons similarly situated have returned to Sri Lanka without automatically being accused of being LTTE supporters. And,
significantly, the Applicant was unable to identify the risk of being on the
ship without being prompted by his counsel. The fact that some documentary
evidence could lead to a different conclusion is not sufficient to conclude
that a material error was made (Kaur, above, at para 22).
[40]
The Applicant’s submission that the Board made
contradictory findings ignores the strong credibility finding which was
determinative. Accepting that the Applicant was detained in 1996 does not mean
that his fear of persecution was well-founded given that his evidence was
inconsistent, there were unexplained omissions in his PIF and he traveled to
and from Sri Lanka without difficulty. Further, noting that LTTE supporters
faced some risk was not contradictory because the Board found the Applicant did
not fit the profile of being at risk. Further, the fact that he would be
subject to a screening process does not create a risk of a well-founded fear of
persecution.
Analysis
[41]
In my view, the Board’s assessment of the
Applicant’s sur place claim is unreasonable because of the manner in
which it treated the AI report and because it made a contradictory finding concerning
the Applicant’s risk on return to Sri Lanka. These errors place the decision
outside the range of reasonable and acceptable outcomes.
[42]
A sur place refugee is defined in the
United Nations Handbook on Procedures and Criteria for Determining Refugee
Status (the UNHCR Handbook) as a person “who
was not a refugee when he left his country, but who becomes a refugee at a
later date”. The UNHCR Handbook describes two
situations in which a sur place claim may arise: (1) a change in
circumstances in the country of origin during the person’s absence, or (2) as a
result of a person’s own actions such as associating with refugees already
recognized or expressing political views in the new country of residence.
[43]
The concept of the sur place refugee has
been applied to M.V. Sun Sea and M.V. Ocean Lady
passengers as a result of public statements by officials stating that the
Canadian and Sri Lankan government perceive passengers on those vessels to be
associated with the LTTE. This Court, has, for various reasons, issued
diverging decisions concerning whether those passengers are to be considered
refugees sur place. However, given the nature of my findings below, it
is not necessary, here, to delve into a review of those decisions.
[44]
Here, the Applicant submits, in essence, that
the Board erred in selectively reading the documentary evidence, by ignoring
evidence which indicated that a returning asylum seeker would face persecution,
and, that those on board the M.V. Sun Sea faced a risk that they
would be perceived as LTTE supporters. Further, that the Board’s analysis was
contradictory.
[45]
As to the issue of the evidence, Justice Snider set
out some guiding principles in Sarissky v Canada (Minister of Citizenship
and Immigration), 2013 FC 186 at para 4:
[…]
•
The Board is presumed to have considered the
totality of the evidence, and is not required to refer to every piece of
evidence in its decision (Cepeda-Gutierrez v Canada (Minister of Citizenship
and Immigration) (1998), 157 FTR 35 at paras 14-17, [1998] F.C.J. No. 1425
[Cepeda-Gutierrez]).
•
It is a reviewable error for the Board to engage
in selective analysis of documentary evidence, accepting evidence that supports
its conclusions but ignoring contradictory evidence without explanation (see,
for example, Manoharan v Canada (Minister of Citizenship and Immigration),
[1996] F.C.J. No. 356 at para 6 (TD) (QL)). The relevance of the contradictory
evidence to the facts in dispute must be taken into account; the more relevant
the evidence, the more likely that failure to mention it will render the
decision unreasonable (Cepeda-Gutierrez, above at paras 14-17). The
Board may demonstrate that it considered a particular document by addressing
the substantive point for which the contradictory evidence was put forward,
rather than making explicit reference to the document itself.
[46]
While acknowledging the principles outlined
above, in the narrow circumstances of this case, it is my view that the Board
erred in its treatment of the AI report. The relevant portions of the AI
report states:
Sri Lankan government officials have made clear
their belief that the passengers on the MV Sun Sea and the Ocean Lady were
members or supporters of the Liberation Tigers of Tamil Eelam (LTTE) – a view
echoed by some policy makers in Canada. While Amnesty International is not in a
position to verify the past experience of each individual who arrived on these
ships, conditions in Sri Lanka remain dangerous for persons suspected of LTTE
affiliations. As Amnesty International has documented, individuals suspected of
belonging to, or having links to, the LTTE face the risk of torture or other
ill-treatment if arrested by the Sri Lankan authorities. Further, and
specifically with respect to the passengers on the above-mentioned vessels,
Amnesty International believes that they would be exposed to a serious risk of
detention, torture and mistreatment on return should the Sri Lankan authorities
in turn suspect they had been on board those vessels…
[emphasis added]
Conclusion
The Sri Lankan Ministry of Defence has deemed
the passengers on the M.V. 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 fair a real risk of
torture or other ill-treatment if formerly returned to Sri Lanka.
Amnesty International is concerned that M.V.
Sun Sea and Ocean Lady passengers, are perceived to be LTTE
supporters or members and as such face well founded fear of persecution,
including unlawful detention, torture and mistreatment should the Sri Lankan
authorities suspect they were passengers on the ships and they are formerly
returned to Sri Lanka. LTTE suspects have been held incommunicado at detention
centres run by the army, and by police intelligence agencies such as Terrorist
Investigation Division and the Criminal Investigation Division.
[47]
While the Board refers to the AI report, it does
so only in relation to the Respondent’s submission which expressed concern
about some of its conclusions and statements. The Board stated it “It has been pointed out to the panel that with careful reading
of the sources there was a lack of supporting evidence for the conclusions
drawn”. The post hearing submissions of the Minister address its
concerns with the AI report. These are referenced by footnote, but are not
commented on by the Board.
[48]
Having made no finding as to the AI report, the
Board restated its finding that when the Applicant left Sri Lanka he was not suspected of having LTTE ties. It went on to state that the High
Commissioner for Sri Lanka publicly indicated that not all persons traveling on
one of the ships to Canada have ties to the LTTE. The Board did not provide a
reference for this statement. Based on the record, this information appears to have
been taken from a star.com media article dated August 12, 2010 in which the High
Commissioner for Sri Lanka is reported to have stated that a “considerable
number” of the passengers on board the vessels were linked to the LTTE. The
Board then, presumably, drew an inference from this that not all passengers
would have such a link. The obvious question is then, which ones did and how
will the Sri Lanka authorities determine this upon their return?
[49]
The Board concluded that in addition to the
Applicant’s lack of profile of a person previously under suspicion and the fact
that there are reports, which were not specified, that the Sri Lankan
government will not automatically presume that passengers have ties with the
LTTE, there was insufficient credible evidence to conclude that the Applicant
faced more than a mere possibility of persecution if he were to return to Sri
Lanka.
[50]
The Board is entitled to weigh the documentary
evidence (Barua v Canada (Minister of Citizenship and Immigration), 2012
FC 607 at para 22). However, as noted above, the Board errs when it engages in
a selective analysis of documentary evidence, accepting evidence that supports
its conclusions but ignoring relevant contradictory evidence without
explanation (Manoharan v Canada (Minister of Citizenship and Immigration),
[1996] FCJ No 356 at para 6 (TD)(QL)). The more relevant the evidence, the more
likely that failure to mention it will render the decision unreasonable (Cepeda-Gutierrez,
above, at paras 14-17).
[51]
My concern in this case is that the Board did
not explain why it gave greater weight to the attributed statement of the Sri
Lankan High Commissioner, which is also not an independent source, than to the
AI report. The AI report states that those on board the M.V. Sun Sea may be exposed to a serious risk of detention, torture and mistreatment on
return should the Sri Lankan authorities in turn suspect they had been on board
those vessels. While the Board reasonably found that the Applicant had no
prior links to the LTTE, it is not the Applicant’s past that would lead to such
suspicion, but his travel on the M.V. Sun Sea. This is
the very nature of the sur place claim, being that while a person was
not a refugee when he left his country he may become one as a result of his own
actions, such as association with others, after he has left his country of
origin and this is what the AI report speaks to. Further, although the Board also
states that there are reports that the Sri Lankan government will not
automatically presume passengers have ties with the LTTE, these are not
identified in the decision nor is the reference made to the Freedom from
Torture briefing report dated September 13, 2012 entitled “Sri Lankan Tamils
tortured on return from the UK”.
[52]
If the Board rejected the AI report based on the
Respondent’s concerns then, in my view, this would require further explanation given
the context of the report, its source and its importance to the sur place issue. As Justice Mandamin
stated in Sittampalam, above:
[64] Reports by Amnesty International,
Human Rights Watch and the UNHCR are regularly used by tribunals and reviewing
courts and are regarded as credibly reporting on human rights conditions in
many different countries. Justice Tremblay-Lamer stated in her decision in Mahjoub
v. Canada (Minister of Citizenship and Immigration), 2006 FC 1503 (CanLII),
2006 FC 1503:
[72] The delegate's blanket
rejection of information from agencies with worldwide reputations for
credibility such as AI and HRW is puzzling, especially given the institutional
reliance of Canadian courts and tribunals on these very sources. Indeed,
the Minister of Citizenship and Immigration frequently relies on information
from these organizations in creating country condition reports, which in turn
are used by Immigration and Refugee tribunals, in recognition of their general
reputation for credibility (France Houle, "Le
fonctionnement du régime de preuve libre dans un système non-expert: le
traitement symptomatique des preuves par la Section de la protection des
réfugiés" (2004), 38 R.J.T. 263, at pages
315-316 and at note 136).
[73] This reputation for
credibility has been affirmed by Canadian courts at all levels. The Supreme
Court of Canada relied on information compiled by AI, as well as one of its
reports, in Kindler v. Canada (Minister of Justice), 1991 CanLII 78
(SCC), [1991] 2 S.C.R. 779, at pages 829, 830, 839. That Court also cited AI in
Suresh, above, at paragraph 11 in noting the use of torture in the
context of that case.
[…]
[81] I adopt the position of
Justice Marshall Rothstein who stated in Rosales v. Canada (Minister of
Employment and Immigration) reflex, (1993), 72 F.T.R. 1 (F.C.T.D.), at
paragraph 7 that a reviewable error is committed when a decision maker
"arrives at its conclusion by ignoring relevant and apparently
overwhelming evidence to the contrary." (underlining added)
[53]
Justice Mandamin also referred to the Supreme
Court’s caution in Suresh v Canada (Minister of Citizenship and Immigration),
2002 SCC 1, [2002] 1 S.C.R. 3 as to reliance on assurances by a state that it will
refrain from torture when it has engaged, or permitted that practice to be
engaged, in the past. While Justice Mandamin stated that he did not propose to
extend the same standard to government pronouncements, a note of caution was
appropriate in receiving such government statements where there is credible,
independent evidence to the contrary. Considering this and the above, in these
circumstances the Board should have addressed the AI report by giving its
reasons for not accepting its content.
[54]
As to the inconsistent finding, the Board
acknowledges that persons suspected of having links to the LTTE have a
potential risk profile. Further, that those suspected of being LTTE members or
supporters may still be at risk of persecution as reported in the country
documents. The Board also acknowledges that “for persons
suspected of having links with the LTTE conditions remain challenging with
allegations from a number of sources that LTTE members and those perceived to
have connections continue to be questioned and some detained will be tortured”.
The Board does not question that the Sri Lankan authorities will identify the
Applicant as a passenger on the M.V. Sun Sea should he return and, in
fact, states that he will tell them that he was. It also finds that upon
arrival, the Applicant may face temporary detention and/or questioning by the
Sri Lankan authorities “on suspicion of his travel or
having ties to the LTTE or information about the passengers or LTTE on the
ship”. It is difficult to find that this is not contradictory.
[55]
If the Board accepts that the Sri Lankan
authorities may detain the Applicant because of their suspicions arising out of
his travel on the M.V. Sun Sea or having ties to the LTTE or information
about the passengers on the M.V. Sun Sea, and, if it accepts that
persons suspected of LTTE links are at risk of persecution, then this would
seem to contradict its finding that there is no serious possibility that the
Applicant will face persecution. In support of this finding the Board relies,
in part, on the fact that the Applicant travelled in and out of Sri Lanka in the past, and, was unaware of the LTTE’s involvement with smuggling operations
until after the voyage. In my view, the Applicant’s prior travel in and out of
the country has limited bearing on the sur place analysis in these
circumstances. And, while he may not have been aware of the LTTE while he was
on board the vessel, this does not mean that the authorities will take him at
his word on this point upon his return.
[56]
Finally, I would note YS v Canada (Minister of Citizenship and Immigration), 2014 FC 324 [YS]). There, the
Board found that the applicant therein would be detained and questioned on
return but that there was insufficient evidence to find that the applicant would
be presumed to have or have had ties to the LTTE by the Sri Lankan government
simply because he was a passenger on the M.V. Sun Sea. Justice Russell found
that the fact that the applicant therein had been cleared of any suspicion of
LTTE connection in the past does not deal with the sur place claim,
although it has some relevance to it. He found that the Board was obliged to
consider a forward looking sur place claim based on a perceived LTTE
connection as a result of the applicant’s arrival in Canada on the M.V. Sun Sea. He stated the following:
[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] …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.
[57]
The YS decision, amongst other things, highlights
potential significance of the AI report.
[58]
As stated above, in my view, the Board’s
failure to explain why it discounted that report and its inconsistent finding
as to potential risk, the decision is unreasonable. Accordingly, it is
unnecessary to consider the final two issues.
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