Date:
20140227
Docket:
IMM-11987-12
Citation:
2014 FC 190
Ottawa, Ontario,
February 27, 2014
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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RAMANAN PONNIAH
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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 of the decision of Anthony P. da Silva,
a member of the Refugee Protection Division of the Immigration and Refugee
Protection Board [the Board], pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act]. The Board dismissed
the Applicant’s claim for refugee protection, concluding that he was not a
convention refugee or person in need of protection under sections 96 and 97 of
the Act.
I. Issue
[1]
The
issue raised in the present application is as follows:
A. Was
the Board’s decision unreasonable?
II. Background
[2]
The
Applicant is a Tamil citizen of Sri Lanka. Prior to coming to Canada he resided in Sampaltivu, an area that was under the control of the Liberation Tigers of
Tamil Eelam [LTTE], until 1990. At that time he moved to Trincomalee, an area
controlled by the Sri Lankan Army [SLA].
[3]
The
Applicant alleges that in January, 1998, he was detained, interrogated,
threatened and beaten by SLA security forces who suspected that he was
connected to the LTTE because he was born in an LTTE-controlled area. After an
intervention by his school principal, he was released in April, 1998 and in
2000 he moved with his family to Nithyapuri, an area controlled by the SLA.
[4]
The
Applicant alleges that he was continually harassed by members of the LTTE after
he moved to Nithyapuri. This harassment led him to leave school in 2003. In
2004, he started a taxi business but was harassed by SLA security forces
officers.
[5]
In
June, 2009, the Applicant was detained, threatened and beaten by SLA security forces on the grounds that he was suspected of assisting the LTTE as a taxi
driver. His father was able to facilitate a bribe and the Applicant was released
on October 15, 2009. It is unclear if the bribe was received by the security
forces and whether it played a role in his release. After his release, members
of a Tamil paramilitary group visited the Applicant’s father and threatened to
fabricate evidence proving the Applicant’s involvement with the LTTE and give
it to SLA security forces if he did not pay them.
[6]
On
October 31, 2009, the Applicant fled to Mexico via Thailand and entered the United States illegally on November 10, 2009, where he was detained until February, 2010.
He travelled to Canada and made a claim for refugee protection on February 9,
2010.
[7]
The
Board found that the Applicant did not have a well-founded fear of persecution.
[8]
The
Board concluded that the Applicant was not personally targeted on either of the
two occasions he was detained. Rather, he fit a profile that the security
forces were detaining at those times. He was detained in 1998 because he fit
the profile of a young Tamil male. In 2009, he was detained because he was a male
Tamil driver. While his history of detention parallels the history of many
young Tamil males during and after the period of conflict between the SLA and
LTTE, there is little reason to believe that he would be targeted should he
return to Sri Lanka as he is not an LTTE member, fighter or operative, or
person who played a role in the international procurement network. The
increasing sophistication of Sri Lankan government records would substantially
decrease the risk that a person with no links to the LTTE would be targeted.
Further, there was a large gap in time between the two alleged incidences of
persecution.
[9]
The
Board gave very little weight to the Applicant’s place of birth being in a
Tamil-controlled area in Eastern Sri Lanka as a risk factor for persecution.
[10]
The
Board held that, despite evidence that Sri Lanka is not safe for failed asylum
seekers, and particularly for those connected to the LTTE, the Applicant’s lack
of sufficient profile and connection to the LTTE suggests that he would not
attract particular negative attention that would give rise to a risk of
persecution if he was returned to Sri Lanka.
[11]
The
Applicant also alleged that the Tamil Peoples Liberation Tigers political party
(formerly known as the Karuna Group) will extort him should he return to Sri Lanka. While acknowledging there is evidence that paramilitary groups are involved in
extortion, the Board noted that the evidence before it was from 2010, not 2012.
Consequently, the Board found that there is insufficient trustworthy evidence
to suggest that the Karuna Group would present more than a generalized risk to
the Applicant.
III. Standard of Review
[12]
The
standard of review is that of reasonableness (Caruth v Canada (Minister of Citizenship and Immigration), 2009 FC 891, at para 45; Dunsmuir v New Brunswick, 2008 SCC 9, at para 50).
IV. Analysis
[13]
While
acknowledging that the Board need not examine every piece of evidence, the Applicant
argues that the Board was obliged to discuss and give reasons for rejecting important
evidence which contradicts its conclusions (Cepeda-Gutierrez v Canada
(Minister of Citizenship and Immigration), [1998] FCJ No 1425, at para 17 [Cepeda-Gutierrez];
Packinathan v Canada (Minister of Citizenship and Immigration), 2010 FC
834, at paras 9-10 [Packinathan]). The Applicant alleges that the Board
ignored evidence in concluding that because the Applicant was from Eastern Sri
Lanka and not Northern Sri Lanka, his birthplace was not a significant risk
factor.
[14]
The
Board only referred to one excerpt at page 33 of a Danish Immigration
Service report titled “Human Rights and Security Issues concerning Tamils in
Sri Lanka,” in discounting the Applicant’s place of birth in Eastern Sri Lanka as
a significant risk factor.
[15]
However,
the Applicant cited many excerpts from a United Nations High Commission on
Refugees report titled “Guidelines for Assessing the International Protection
Needs of Asylum-Seekers from Sri Lanka” (at pages 56 and 61) and a
United Kingdom Border Agency report titled “Sri Lanka: Country of Origin
Information,” (at pages 93, 120-122, 126-127 and 158). These excerpts show that
Tamil men from both Eastern and Northern Sri Lanka are victims of enforced
disappearances and abductions, undocumented detentions, extortion and ransom,
extrajudicial killings, frequent harassment, close scrutiny from police and
anti-terrorism measures, harsh material conditions and economic
marginalization.
[16]
The
Respondent argues that the
precedent in Cepeda-Gutierrez applies to evidence specific to an
applicant, and not general country condition evidence. I find
that nothing in Cepeda-Gutierrez supports such a narrow reading so as to
constrain its precedent to evidence regarding the Applicant’s personal
situation. This is supported by the jurisprudence (Packinathan, above, at
para 9; Pinto Ponce v Canada (Minister of Citizenship and Immigration),
2012 FC 181; Gonzalo Vallenilla v Canada (Minister of Citizenship and
Immigration), 2010 FC 433).
[17]
It
is unreasonable to ignore the clear evidence which shows that Eastern and Northern
Tamil males face the same substantial risks of persecution. This contradicts
the Board’s finding on this important issue and no single concluding statement
by the Board which asserts that it considered all the evidence is sufficient to
support a finding otherwise (Cepeda-Gutierrez, above, at para 17;
Packinathan, above, at para 10).
[18]
For
these reasons, this application for judicial review is allowed.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application is allowed and the matter is referred back to a differently
constituted Board for reconsideration;
2.
No
question is certified.
"Michael D.
Manson"
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