Docket:
IMM-12625-12
Citation: 2014 FC 184
Ottawa, Ontario, February 26, 2014
PRESENT: The Honourable Mr. Justice Boivin
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BETWEEN:
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NIREKAN SIVANATHAN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Defendant
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (the Act) of a decision made by the Refugee Protection Division
of the Immigration and Refugee Board (the Board) on November 20, 2012, wherein
the Board rejected the applicant’s application for refugee protection.
Background
[2]
Nirekan Sivanathan (the applicant) is a twenty-five
(25) year-old citizen of Sri Lanka. He is a Tamil from the Vavuniya district,
located in the Northern Province of the country.
[3]
On August 13, 2010, the applicant arrived in Canada aboard the MV Sun Sea ship. He made a refugee claim the same
day. The applicant fears that he would be arrested, tortured and indefinitely
detained if he were to return to Sri Lanka.
[4]
The Board determined that the applicant was neither
a Convention refugee in accordance with section 96, as he did not have a
well-founded fear of persecution and failed to make a sur place claim,
nor a person in need of protection pursuant to subsections 97(1)(a) and
97(1)(b) of the Act.
Issues
[5]
The current application raises the following
issues:
1.
Did the Board apply the correct test?
2.
Was the Board’s finding that the applicant’s
profile did not make him a refugee reasonable?
3.
Was the Board’s finding that the applicant was
not a refugee sur place reasonable?
4.
Did the Board reasonably find that the applicant
only faced general risk of crime?
5.
Did the Board make reasonable credibility
findings?
Standard of review
[6]
The Board’s findings concerning the issues
raised are questions of mixed fact and law. As such, they are reviewable under
the reasonableness standard (Canada (Minister of Citizenship and
Immigration) v B380, 2012 FC 1334 at paras 13-15, [2012] FCJ No 1657 (QL); B231
v Canada (Minister of Citizenship and Immigration), 2013 FC 1218 at paras
27-29, [2013] FCJ No 1316 (QL) [B231]). As to the Board’s credibility
findings, they should be given significant deference (Wu v Canada (Minister of Citizenship and Immigration), 2009 FC 929 at para 18, [2009] FCJ No 1143
(QL); Aguebor v (Canada) Minister of Employment and Immigration) (FCA),
[1993] FCJ No 732 at para 4, 160 NR 315).
[7]
When applying the reasonableness standard, a
reviewing court is not allowed to reweigh the evidence that was before the
decision-maker. It should limit its examination to “[…] the existence of
justification, transparency and intelligibility within decision-making process”
and should be concerned with determining “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008]
1 SCR 190).
Analysis
[8]
The applicant argues that the Board applied
incorrect tests in its analysis of section 96 claim. The applicant refers to
passages where the Board insists on the positive evolution of the human rights situation
in Sri Lanka (Board’s decision at paras 29-30), on the fact that the applicant
was never directly targeted as an LTTE supporter (Board’s decision at para 43),
or on its view that the applicant did not face a “heightened” (Board’s decision
at para 34) or “increased” risk (Board’s decision at para 53). According to the
applicant, “it is clear that Member da Silva applied a series of incorrect tests”
(Applicant’s Memorandum of Argument at para 15). The Court is not convinced
that the passages cited by the applicant are indicative that the Board applied
a modified and incorrect test. When reading the decision as a whole, the Court
is rather of the view that the Board conducted an analysis of the evidence
documenting the evolving situation in Sri Lanka and of the particular situation
of the applicant in order to determine whether he faced a serious possibility
of persecution. The Board did not conduct an exercise in “relativity” as
suggested by the applicant (Board’s decision at paras 25, 34, 43). More
particularly, the wording of the Board does not suggest that it applied a more
stringent test, but merely that it tried to assess if the applicant, being a
member of an ethnic group facing general difficulties in an evolving country,
faced serious possibility of persecution. The Board’s conclusion is apposite:
“[…] the claimant has not satisfied the burden of establishing a serious
possibility of persecution on Convention grounds, or that, on a balance of
probabilities, he would be subject personally to a danger of torture, or face a
risk of cruel and unusual treatment or punishment” (Board’s decision at para
62).
[9]
The applicant’s claim that the Board ignored
several documents substantiating the harassment, discrimination and violence
committed by the Sri Lankan authorities and paramilitary groups towards Tamil
males cannot succeed. The applicant provided a list of elements of the
documentary evidence indicating that his fear of persecution was well-founded,
whether as a young Tamil or as a failed refugee, but that these were not
directly mentioned by the Board. However, and as observed by Justice Snider in
a decision dealing with similar facts, the Court is of the view that “the Board
did deal with the substance of the document[s]” (SK v Canada (Minister of Citizenship and Immigration), 2013 FC 78 at para 16, [2013] FCJ No 137 (QL)).
[10]
Indeed, the Board repeatedly acknowledged and
mentioned many pieces of evidence suggesting that the situation is still
difficult in Sri Lanka, especially for Tamils originating from the Northern Province. However, it chose to rely on other elements of the documentary evidence
indicating that, since the end of the war, the situation has steadily improved
to the point where group-based protection mechanisms are no longer warranted
and individual assessments of the circumstances of each claim are required. The
applicant suggested a different reading of the evidence but it failed to convince
the Court that the Board’s weighing of the evidence was unreasonable.
[11]
Turning to the Board’s challenged credibility
finding, the Board’s adverse findings are based on the evidence adduced,
omissions, inconsistencies, and are sufficiently motivated. For instance, it
was open to the Board to conclude that the fact that the applicant convinced
his captors at the camp that he had his scar since childhood makes it likely
that the scar would not in itself raise suspicion that he was involved with the
LTTE. It was also reasonable to conclude that, because the applicant was
released by the CID after being interrogated on suspicions of LTTE involvement
and was not sent to special camp for LTTE supporters, he was not perceived by
the Sri Lankan authorities as being affiliated with the organization.
[12]
With respect to the sur place claim, the
applicant contends that the Board ignored documents that clearly state that Sri
Lankan government officials believed that the operators and passengers of the MV
Sun Sea ship were affiliated with the LTTE and the cumulative effect of
its findings constitutes an error. However, the Court notes that the Board
directly mentioned that some documents suggest that both Canadian and Sri
Lankan officials believed that the MV Sun Sea’s passengers had
links with the LTTE (Board’s decision at paras 46, 50). While acknowledging
that evidence, the Board believed that it did not confirm that all MV Sun
Sea’s passengers were perceived as LTTE supporters (Board’s decision at
para 53). The Board then proceeded to analyze the applicant’s personal situation
and concluded that merely being onboard the MV Sun Sea was not sufficient, in and of itself, to establish a sur place claim in his
particular case. This conclusion is supported by a number of decisions from
this Court (Canada (Minister of Citizenship and Immigration) v B459, 2013
FC 740 at paras 8-10, [2013] FCJ No 779 (QL); Canada (Minister of
Citizenship and Immigration) v B171, 2013 FC 741 at paras 9-13, [2013]
FCJ No 821 (QL); Canada (Minister of Citizenship and Immigration) v B420,
2013 FC 321 at paras 16-17, [2013] FCJ No 396 (QL); Canada (Minister of
Citizenship and Immigration) v A011, 2013 FC 580 at para 40, [2013]
FCJ No 685 (QL); Canada (Minister of Citizenship and Immigration) v
B472, 2013 FC 151 at paras 24-28, [2013] FCJ No 192 (QL)).
[13]
Regarding the issue of generalized risk, it was
not unreasonable for the Board to conclude, based on the documentary and
testimonial evidence, that the EPDP and the Karuna Group do not pose a particular
threat to the applicant, who seems to have been targeted while in Sri Lanka through routine checks, and not because of his ethnicity. The Board committed no
reviewable error in concluding that the extortion threats described by the
applicant amounted to a generalized risk. There is ample evidence to that
effect (Tribunal Record, vol. 2, pp 319, 320, 322, 341 and 342; vol. 3, pp
430 and 559).
[14]
For all of these reasons, the Board’s decision
is reasonable as it “falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir). Hence,
the Court’s intervention is not warranted. The application will be dismissed.
[15]
Counsel for the applicant suggested the following
question for certification:
"Is
"heightened risk" or "increased risk" the proper test for
determining whether or not a person has a well-founded fear of
persecution".
[16]
Given the Court’s conclusion regarding the test applied by the Board, and the fact
that the question submitted by the applicant relates therefore to the
assessment of the evidence and not the burden of proof, the Court will decline
to certify the question as it is not an issue of broad significance and it is
not determinative of this case.
JUDGMENT
THIS COURT’S JUDGMENT is that the
application be dismissed. No question is certified.
“Richard Boivin”
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