Docket: IMM-5274-13
Citation:
2014 FC 618
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 26, 2014
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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PRASATH NAGENDRARASA
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review of
the decision by the Refugee Protection Division (RPD) of the Immigration and
Refugee Board dated June 10, 2013.
[2]
The RPD rejected the claim pursuant to sections
96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27
(Act).
[3]
This is an application for judicial review
pursuant to section 72 of the Act.
[4]
After having considered the arguments of the
parties and having examined the record, the Court found that the application
for judicial review must be dismissed for the following reasons.
[5]
The applicant claims that he fears persecution
in Sri Lanka. He is a man of Tamil ethnicity from the northeastern part of the
country. He was 24 years old at the hearing. He and his family worked as
fishers. His father was apparently victimized by members of the Liberation
Tigers of Tamil Eelam (LTTE), who purportedly requisitioned one of the family’s
two boats in 2001, and then the other in 2006. The applicant was allegedly
arrested by the Sri Lankan authorities in 2006, beaten and questioned about
possible links to the LTTE. In 2009, a group calling itself the “Karuna group” apparently
tried to extort money from the applicant’s father and purportedly confined the
applicant for one week to force his father to pay an alleged ransom. A member
of the Karuna group then allegedly reported the applicant to the army as an
accomplice to the LTTE, stating that he was lending his boats to the guerrillas.
He was then apparently imprisoned from May 2010 to August 20, 2010. He escaped
or was released in August 2010.
[6]
Ultimately, it appears from the applicant’s account
that it is not clear whether he fears persecution from the LTTE, the Karuna
group, the government authorities, or all of those parties.
[7]
His journey to Canada took some time. The
applicant testified that he left Sri Lanka on September 1, 2010, and, after a
long journey, arrived at the Canadian border in Lacolle, Quebec, on May 2,
2012.
[8]
He apparently travelled from Sri Lanka to South
Africa and to Kenya in September 2010. He then returned to South Africa in
February 2011 and flew to Brazil, either in February or in May 2011, and arrived
in Sao Paulo. Between May 11 and June 11, 2011, he drove a car, or was driven in
a car, to the northern border of Brazil and through Colombia, Panama, Nicaragua
and Honduras, to finally arrive in El Salvador. From there, he left for Mexico
by car in September 2011.
[9]
He was arrested on December 25, 2011, while trying
to cross the border between Mexico and Texas. Around March 28, 2012, the
American authorities released him on $3,000 bail, which was paid by an uncle in
New York. He went to stay with that uncle for a few weeks and claimed asylum in
the United States. However, he did not wait for his hearing in the United
States and explained that his uncle could no longer help him and that he
preferred to seek protection in Canada. As previously noted, he arrived in Canada
on May 2, 2012.
[10]
The RPD found that the applicant’s account was
implausible, which obviously undermines his entire credibility. For example,
the whole story about the family’s fishing boats was inconsistent. He initially
stated that “[n]othing happened with boats” between
2001 and 2006, and then stated that, between 2002 and 2006, “the LTTE took away our boat more frequently”. When asked
about this at the hearing, he explained that he had not understood the question
in the Personal Information Form. Given the significance of the allegation of
collaboration with the LTTE to his refugee protection claim, the RPD did not
accept that he could not clearly testify on that point, which was central to
his refugee protection claim.
[11]
He could not provide details about his supposed
escape from prison in August 2010 and had instead testified before the American
authorities that the army had released him and told him to leave the country or
be arrested again. He explained that contradiction by stating that he had been
questioned via videoconference by the American authorities and had not really
understood.
[12]
On many occasions, the applicant changed his
account concerning his journey from Sri Lanka to Canada. The RPD tried to
determine whether he stated that he had crossed through Venezuela on his way
from Brazil to Colombia, and whether he stated that he took a boat to get from
Colombia to Panama. The panel noted that there is no highway between Brazil and
Colombia, that the applicant stated that he crossed those two large countries
in seven or eight days during the rainy season, and that apparently he did not
see anything en route, including the fact that Colombia is in an armed conflict
with the FARC. The panel found that that was not credible. The RPD was
therefore unable to determine when he left Sri Lanka or where he stayed before his
arrest in Texas. One would have thought that such a remarkable journey would
have left a stronger impression.
[13]
The RPD was no more satisfied with the
explanations as to why he did not stay in New York while waiting for the
outcome of his asylum claim in the United States. The applicant did not
demonstrate that his uncle could not help him and he had family there, contrary
to his situation in Canada. Moreover, the asylum claim had already been filed
and was waiting to be processed.
[14]
Thus, not surprisingly, the RPD found that the
applicant was not credible and that his account was implausible; thus, he did
not provide sufficient evidence to demonstrate that he was a refugee or a person
in need of protection.
[15]
The two issues are whether the RPD’s finding was
reasonable and, if necessary, whether the applicant’s profile is enough in
itself to demonstrate that he is sufficiently at risk if he were returned to Sri
Lanka to be able to benefit from section 97 of the Act even if his personal
history of persecution is not credible. The applicant claims that the RPD
disregarded the extensive documentary evidence that supports the argument that
his profile makes him a target.
[16]
I am of the opinion that the RPD’s credibility
findings were completely reasonable. The contradictions and implausibilities
undermined the testimony and the applicant, who has the burden of proof, had no
acceptable explanation. The role of the reviewing judge is not to reassess the
facts, but to ensure that the decision rendered was reasonable in light of the
record. Thus, the decision must have the distinction of being within the realm
of reasonableness pursuant to Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190:
[47] . . . reasonableness is concerned
mostly with the existence of justification, transparency and intelligibility
within the decision‑making process. But it is also concerned with whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
[17]
In this case, the panel’s reasoning was
justified, transparent, and intelligible.
[18]
Regarding the applicant’s argument that the
objective evidence on the conditions in Sri Lanka could, in itself, form
the basis for his refugee protection claim, even if his personal history did
not sufficiently demonstrate past persecution or future risk, the applicant is
confronted with the RPD’s finding that he cannot be believed.
[19]
The panel was not faced with a case of weak credibility
where there could be, despite everything, support in the documentary evidence
that could fill certain gaps. It did not believe the applicant’s entire account.
The allegations of torment in Sri Lanka, the escape, the journey in Africa, from
east to west in South America, then north through Central America, Mexico, to Texas,
none of that was accepted by the RPD. As previously stated, the RPD’s decision
is reasonable.
[20]
It follows that the applicant wanted to benefit
from sections 96 and 97 of the Act based solely on the documentary evidence
suggesting that youths like him are more at risk. In fact, this would mean that
the profile suffices, without there being anything more precise on the individual’s
particular circumstances. Thus, a risk that is at best generalized would
guarantee the claim’s success.
[21]
Because the documentary evidence cannot be considered
corroborative in this case, it can merely support a finding that the risk is only
generalized. In my view, there should have been a minimum amount of evidence of
a personalized risk. The documentary evidence is only general.
[22]
A decision by Justice Boivin, then of this Court,
is to the same effect. In particular, paragraph 22 of Ayikeze v Canada (Citizenship
and Immigration), 2012 FC 1395 reads as follows:
[22] The case law of this Court is clear
that the burden is on the applicant to make the link between the objective
evidence and her personal situation and, in this case, the applicant did not
show that she was threatened or that she would be if she were to return to
Burundi. The documentary evidence on record, in itself, cannot supplement the
lack of evidence related to the applicant's particular case (citing Dreta v
Canada (Minister of Citizenship and Immigration), 2005 FC 1239, 142 ACWS
(3d) 493, and Nazaire v Canada (Minister of Citizenship and Immigration),
2006 FC 416, 150 ACWS (3d) 902).
[23]
The applicant relied on Kulasekaram v Canada
(Citizenship and Immigration), 2013 FC 388, and Ponniah v Canada (Citizenship
and Immigration), 2014 FC 190. It is sufficient to find that the facts in those
decisions are very different from the case at bar, where nothing remains of
applicant’s account. Regardless, the Federal Court of Appeal’s decision in Prophète
v Canada (Citizenship and Immigration), 2009 FCA 31 seems to me to dispose
of the issue. Paragraphs 3 and 10 serve as an illustration:
[3] To be a person in need of
protection, the appellant had to show the Board, on a balance of probabilities,
that his removal to Haiti would subject him personally, in every part of
that country, to a risk to his life or to a risk of cruel and unusual treatment
that is not faced generally by other individuals in or from Haiti
(emphasis added) (the relevant legislation is annexed to these reasons).
. . .
[10] In the case at bar (Prophete v.
Canada (Citizenship and Immigration), 2008 FC 331), there was evidence on
record allowing the Applications Judge to conclude:
[23] . . . that the applicant does
not face a personalized risk that is not faced generally by other individuals
in or from Haiti. The risk of all forms of criminality is general and felt by all
Haitians. While a specific number of individuals may be targeted more
frequently because of their wealth, all Haitians are at risk of becoming the
victims of violence.
[24]
Consequently, the application for judicial
review is dismissed. The parties did not submit a serious question of general
importance and no question for certification arises.
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