Docket: IMM-2608-13
Citation:
2015 FC 274
Ottawa, Ontario, March 5, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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SURAJ NAVARATNAM
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ATHAPATHTHU DISANAYA NIMALI SHIRANI PERERA
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ABHIMANYA SURAJ NAVARATHNAM
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ADHITHYA SURAJ NAVARATNAM
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Applicants
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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]
The applicants’ claim for refugee protection was
denied by the Refugee Protection Division of the Immigration and Refugee Board
of Canada [the Board]. They now apply for judicial review of that decision
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act].
[2]
The applicants seek an order setting aside the
negative decision and returning the matter to a different member of the Board
for redetermination.
I.
Background
[3]
The applicants are citizens of Sri Lanka. Suraj
Navaratnam, the principal applicant, is Tamil and his spouse is Sinhalese. They
seek refugee protection for two reasons: 1) being Tamil; and 2) their mixed
marriage.
[4]
In January and February 1996, prior to the
applicants’ marriage, the couple received opposition from their community
regarding their foreseeable union. The police officers, army officers and the
Sinhalese people along with their relatives gave death threats in their attempt
to prohibit the marriage.
[5]
On March 28, 1996, the principal applicant and
his wife got married but lived separately in order to keep their marriage a
secret. In October 1997, one and a half years after their marriage, they
started living together. In November 1997, the uncle of the applicant wife
visited and after learning about their marriage, spread the news. The police
officers, army officers and the Sinhalese people came again with threats.
[6]
In January 1998, the principal applicant left
Sri Lanka. He has not returned there except to visit over the past 15 years.
His wife left in 1999.
[7]
In October 2005, the parents of the principal applicant’s
wife were threatened three times and her mother suffered a heart attack the
following day.
II.
Decision Under Review
[8]
The Board hearing was on March 25, 2013. The
Board gave oral reasons for its negative decision on the same day and
subsequently released its written decision on April 15, 2013. It found that the
principal applicant and his family were not Convention refugees and not persons
in need of protection.
[9]
The Board first summarized its credibility
finding, stating the applicants’ claim had some exaggeration because it has
been 15 years since the mixed marriage, so it questioned if “the Sinhalese community was still angry about [their] mixed
marriage.” In support, the Board stated it could not find evidence in
any of the human rights reports that mixed marriages in Sri Lanka face such a
series of threats and persecution to continue for 15 years or more.
[10]
The Board then summarized its state protection
finding, stating the applicants failed to meet their onus to prove that there
was no state protection. It stated the determinative issue is internal flight alternative
[IFA].
[11]
The Board first explained what an IFA is and
stated that even if it accepts the applicants’ subjective fear, it still has to
be satisfied that there is not some other place the applicants could go. It
proposed Colombo, a city of roughly five million people with many Tamil
residents; and Trincomalee and Jaffna. The Board noted that the principal applicant
and his wife returned to Sri Lanka on multiple occasions between 1998 and 2012;
and although staying for only short durations in Colombo, they were safe. It
further found it implausible that the police in Battaramulla would pursue the
applicants as far as Trincomalee and Jaffna.
[12]
Therefore, the Board concluded that the principal
applicant did not establish if he and his family returned to Sri Lanka that
they would face more than a mere possibility of persecution based on either
their ethnicity or being members of a particular social group.
III.
Issues
[13]
The applicants submit the following issues for
my consideration:
1.
A preliminary issue to join the principal
applicant’s wife and two children to the style of cause.
2.
The Board failed to provide adequate reasons and
lack of evidentiary basis.
3.
As self-represented applicants during the Board
hearing, the time provided to prepare their claim was insufficient and breached
procedural fairness.
[14]
The respondent agrees with the applicants’
preliminary issue and submits that there is only one other issue: the
applicants have not demonstrated that there is a reviewable error upon which
the proposed application for judicial review might succeed.
[15]
In my view, there are four issues:
A.
Should the principal applicant’s wife and his
two children be joined to the style of cause?
B.
What is the standard of review?
C.
Did the Board breach procedural fairness?
D.
Was the Board’s decision reasonable?
IV.
Applicants’ Written Submissions
[16]
The applicants submit the standard of review is
reasonableness for the issue of the Board’s consideration of the applicants’
allegations and evidence (see Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 [Dunsmuir]; Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12 at paragraphs 45, 46 and 59, [2009] 1 S.C.R. 339 [Khosa]).
[17]
The applicants submit as a preliminary issue
that the style of cause be changed so the principal applicant’s judicial review
application is joined with those of his wife and their two children.
[18]
The applicants then submit the timeline of one
and a half months from the refugee claim to the refugee hearing is too short
for the purpose of material preparation and argue the new CIC timelines
requiring supporting evidence be submitted to the Board twenty days in advance
of hearing is “grossly unfair, unreasonable and
prejudicial.”
[19]
The applicants then argue the Board erred on
mainly two grounds: 1) the Board breached procedural fairness; and 2) its
decision on state protection and IFA is unreasonable.
[20]
Insofar as the issue of procedural fairness is
concerned, the applicants submit the Board failed to meet the greater care and
duty owed to a self-represented claimant (see Nino v Canada (Citizenship and
Immigration), 2012 FC 956, [2012] FCJ No 1020 [Nino]). Although the applicants
concede that they had every right to appear with legal counsel, they rely on
the notion of the right to a fair hearing (see Austria v Canada (Minister of
Citizenship and Immigration), 2006 FC 423, [2006] FCJ No 597 [Austria];
Mervilus v Canada (Minister of Citizenship and Immigration), 2004 FC
1206 at paragraph 17, [2004] FCJ No 1460 [Mervilus]; Siloch v Canada
(Minister of Employment and Immigration), [1993] FCJ No 10, 151 NR 76 (FCA)
[Siloch]; and Nemeth v Canada (Minister of Citizenship and
Immigration), 2003 FCT 590, [2003] FCJ No 776 [Nemeth]).
[21]
The applicants argue that in this case, the
Board failed to do something to explain the process to the applicants, help the
applicants navigate through the proceedings, remain alert to whether or not they
comprehend the proceedings and invite them to make any final submissions or
“statement” in support of their claim.
[22]
Insofar as the issue of reasonability is
concerned, the applicants submit the Board erred in analyzing state protection
and IFA. First, the applicants argue the issue of state protection cannot arise
because in the case at bar, the named agents of persecution are or include
state security agents such as the police and/or military (see Zhuravlvev v
Canada (Minister of Citizenship and Immigration), [2000] FCJ No 507, 187
FTR 110; Canada (Minister of Employment and Immigration) v Villafranca [1992]
FCJ No 1189, 18 Imm LR (2d) 130, (FCA) [Villafranca]; and Kadenko v
Canada (Minister of Citizenship and Immigration), [1996] FCJ No 1376, 143
DLR (4th) 532). They submit the Board was unreasonable to have accepted that
the Sri Lankan police acted as an agent of persecution, and then reject the
claim on the ground that the applicants failed to “exhaust” the possibilities
of getting protection in their own country. Also, the applicants argue the
Board erred in ruling the applicants did not rebut the presumption of adequate
state protection because it did not refer to any objective evidence that if
state protection was sought, adequate protection would have been forthcoming (see
Hercegi v Canada (Minister of Citizenship and Immigration), 2012 FC 250
at paragraphs 5 to 7, [2012] FCJ No 273; Meza Varela v Canada (Minister of
Citizenship and Immigration), 2011 FC 1364, [2011] FCJ No 1663; Gomez v
Canada (Minister of Citizenship and Immigration), 2010 FC 1041, [2010] FCJ
No 1346; and Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration) [1998] FCJ No 1425, 157 FTR 35).
[23]
Second, the applicants argue if the Board
accepted that the named agent of persecution in Battaramulla included state
security agents, then it was an error of law for it to raise the issue of IFA
in another part of Sri Lanka, given that objective evidence confirms that state
security agents exist and operate in every part of the country, such as in the
proposed IFAs (see Canada (Minister of Employment and Immigration) v
Sharbdeen, [1994] FCJ No 371, 23 Imm LR (2d) 300; and Tripathi v Canada
(Minister of Citizenship and Immigration), 2009 FC 174, [2009] FCJ No 219).
Also, the applicants state the Board merely rendered a finding and failed to
conduct any analysis or consideration of an IFA in either Trincomalee or Jaffna
(see Miranda v Canada (Minister of Employment and Immigration), [1993]
FCJ No 437, 63 FTR 81).
[24]
Lastly, the applicants submit the Board’s
reasons are brief and lack any references to specific documentary evidence in
its findings of adequate state protection and IFAs. The applicants further
argue that the Board failed to properly assess and provide reasons for its
finding on section 97. The applicants cite Asu v Canada (Minister of
Citizenship and Immigration), 2005 FC 1693, [2005] FCJ No 2096 [Asu]
for support.
V.
Respondent’s Written Submissions
[25]
For the preliminary issue, the respondent agrees
with the applicants that the style of cause should be amended to include all
the parties from the refugee claim and hence, it addresses them collectively as
the applicants.
[26]
First, the respondent argues that although the
applicants assert they were prejudiced by the short timeframe, they had
relevant documentation in support of their claim and failed to articulate what
they were unable to present to the Board. Further, the timeline is there to
ensure a timely and fair process for the determination of refugee claims.
[27]
Second, the respondent argues the hearing met
the requirements of procedural fairness and the applicants participated
meaningfully and presented their case fairly. Also, it submits the Board’s
conduct of the hearing was not improper and that there was nothing problematic
about indicating that counsel would make submissions on law at the end of the
hearing. The Board was simply explaining the hearing process to the
self-represented applicants.
[28]
Third, the respondent submits the Board’s
reasons were adequate. The obligation to provide adequate reasons is satisfied
when the decision maker sets out its findings of fact and the principal
evidence upon which those findings were based (see Canada (Minister of Citizenship
and Immigration) v Charles, 2007 FC 1146 at paragraph 27, [2007] FCJ No
1493; and Ivanov v Canada (Minister of Citizenship and Immigration),
2006 FC 1055 at paragraph 35, [2006] FCJ No 1339). Here, the Board addressed
the major points in issue and the relevant evidence. This reasoning process
reflects the fact that the Board gave consideration to the relevant factors.
Further, the test for the adequacy of reasons depends on the circumstances of
each case so far as it allows the person concerned to know why a particular
result was reached (see Townsend v Canada (Minister of Citizenship and
Immigration), 2003 FCT 371, [2003] FCJ No 516 [Townsend]).
[29]
Here, the Board found the applicants had not
taken all reasonable steps to pursue available state protection. It also
considered that police might have been complicit in Battaramulla, but the fact
remains that no avenues of protection were explored elsewhere in the country.
Further, the test for state protection is adequacy, not effectiveness. The
applicants failed to rebut this presumption (see Hernandez Victoria v Canada
(Citizenship and Immigration), 2009 FC 388 at paragraphs 13 to 19, [2009]
FCJ No 532; Canada (Attorney General) v Ward [1993] 2 S.C.R. 689 at
paragraph 49; Kadenko v Canada (Minister of Citizenship and Immigration),
[1996] FCJ No 1376, at paragraph 5, 143 DLR (4th) 532 (FCA); Villafranca
at paragraph 7; Carrillo v Canada (Minister of Citizenship and Immigration),
2008 FCA 94 at paragraphs 18, 19 and 30, [2008] FCJ No 399; Ruiz Martnez v
Canada (Citizenship and Immigration), 2009 FC 1163, [2009] FCJ No 1443).
Applicants must do more than rely on a subjective assertion that they thought
state protection would not be available (see Duran Mejia v Canada (Minister
of Citizenship and Immigration), 2009 FC 354, [2009] FCJ No 438 [Mejia]).
[30]
Fourth, the onus is on the refugee claimants to
show they do not have an IFA once the issue of IFA is raised (see Rasaratnam
v Canada (Minister of Employment and Immigration), [1992] 1 FC 706, [1991]
FCJ No 1256 (FCA) [Rasaratnam]; and Thirunavukkarasu v Canada
(Minister of Employment and Immigration), [1994] 1 FC 589, [1993] FCJ No
1172 (FCA) [Thirunavukkarasu]). Here, the applicants failed to do so
because they had safely visited the country over half a dozen times in the last
fifteen years. Also, the respondent in its attempt to clarify the applicants’
submission, argues the Board’s concern was that the applicants did not complain
to the police in jurisdictions other than the place of persecution.
VI.
Analysis and Decision
A.
Issue 1 - Should the principal applicant’s wife
and his two children be joined to the style of cause?
[31]
The principal applicant submits that his wife
and two children should be joined to the style of cause. The respondent agrees.
I agree that it is in the best interests of justice and utilization of judicial
resources to join them to the style of cause.
B.
Issue 2 - What is the standard of review?
[32]
Here, I will examine the applicants’ submissions
regarding the timeline of the refugee claim, the hearing process and the
adequacy of reasons as matters of procedural fairness. Pursuant to Khosa v
Canada (Minister of Citizenship and Immigration), 2009 SCC 12 at paragraph
43, [2009] 1 S.C.R. 339 [Khosa], issues of procedural fairness are
questions of law and are reviewed on a standard of correctness (see also Canadian
Union of Public Employees (CUPE) v Ontario (Minister of Labour), 2003 SCC
29 at paragraph 100, [2003] 1 S.C.R. 539).
[33]
As for the issue of the reasonability of the
Board’s decision, I agree the standard of review is reasonableness. Here, the
issue under review is a mix of fact and law. It has been established in Dunsmuir,
at paragraph 53, that the standard of reasonableness is applied “where the legal and factual issues are intertwined with and
cannot be readily separated.” (see also Aguebor v Canada (Minister of
Employment and Immigration), [1993] FCJ No 732 at paragraph 4, 160 NR 315
(FCA); Rahal v Canada (Minister of Citizenship and Immigration), 2012 FC
319 at paragraphs 22 to 40, [2012] FCJ No 369). Further, the Federal Court of
Appeal has determined in Carrillo at paragraph 36, that the standard of
review is reasonableness for the issue of state protection (see also Mejia
at paragraph 25). This means that I should not intervene if the decision is
transparent, justifiable, intelligible and within the range of acceptable
outcomes (see Dunsmuir at paragraph 47; Khosa at paragraph 59).
As the Supreme Court held in Khosa at paragraphs 59 and 61, a court
reviewing for reasonableness cannot substitute its own view of a preferable
outcome, nor can it reweigh the evidence.
C.
Issue 3 - Did the Board breach procedural
fairness?
[34]
I will deal with the applicants’ assertions on
procedural fairness in three parts: first, on the timeline of the refugee
claim, second, on the hearing process, and third, on the adequacy of reasons.
[35]
Firstly, I agree with the respondent that the
refugee claim process does not prejudice the applicants. The timeline is there
to ensure a timely and fair process for the determination of refugee claims.
Here, the applicants submitted relevant documentation in support of their
claim; they have not made any submissions on judicial review pertaining to how
the timeline supposedly had prejudiced them in terms of material preparation.
Therefore, the timeline implemented does not breach procedural fairness.
[36]
Secondly, the applicants submit that the Board
failed to meet the greater care and duty owed to self-represented claimants
during the refugee hearing. In support, they cite Nino, Austria, Mervilus,
Siloch and Nemeth.
[37]
This Court has repeatedly held in immigration
matters that the right to counsel is not absolute (Mervilus at
paragraphs 17 to 25). Madame Justice Danièle Tremblay-Lamer stated in Austria
at paragraph 6 that “[w]hat is absolute, however, is
the right to a fair hearing. To ensure that a hearing proceeds fairly, the
applicant must be able to “participate meaningfully”.” (see Canada
(Minister of Citizenship and Immigration) v Fast, 2001 FCT 1269 at
paragraphs 46 and 47, [2002] 3 FC 373).
[38]
In Nino, although this Court ruled an
adjournment should be granted, it was based on the fact that counsel for the
applicant had requested an adjournment, but the Board proceeded with the
hearing in the absence of counsel. Similarly in Mervilus, an adjournment
was requested due to counsel’s unavailability and the Board erred in not
granting it. Also, in Siloch, this Court found the Board’s denial of the
applicant’s request for adjournment was unreasonable because it erred in
penalizing her for her counsel’s previous poor behaviour. These cases can be
distinguished factually because there was no request for adjournment in the
present case.
[39]
As for Austria, at paragraphs 8 and 9,
this Court ruled the Board in that case did not breach procedural fairness in
allowing a self-represented claimant to proceed without counsel after the Board
confirmed the claimant’s readiness and adequately explained the hearing
process. The proposition from this case does not help the applicants’ argument
in any way.
[40]
In Nemeth, this Court allowed the judicial
review and explained in paragraph 10 that “[t]he Board
was aware that the Nemeths had been represented up until just prior to the
hearing” but it was not “alive to the risk that
the claimants were ill-prepared to represent themselves.” Mr. Justice James
O’Reilly found procedural fairness was breached because “[u]nder the circumstances, [the Board] had an obligation to
ensure that the Nemeths understood the proceedings, had a reasonable
opportunity to tender any evidence that supported their claim and were given a
chance to persuade the Board that their claims were well-founded.”
[41]
Here, the applicants argue the Board breached
procedural fairness: 1) the Board did not explain the proceedings; 2) it did
not help them navigate through the process; 3) it was not alert as to whether
the applicants comprehended the proceedings; 4) it invited them to make final
submissions; and 5) it did not offer an adjournment.
[42]
In the present case, I do not find that the
Board conducted the hearing in such a way as to breach procedural fairness.
First, I am satisfied that the Board did explain the process to the applicants.
There are multiple points as shown from the record that the Board helped them
navigate during the hearing, such as on page 159 at the beginning of the hearing
and on page 201 near the end of the hearing. Second, although there are
multiple times during the hearing that the Board required the applicants to
clarify and explain their answers, the hearing as an entirety as reflected by
the record does not show that the applicants failed to comprehend the
proceeding. Third, I see the Board’s invitation to the applicants to make final
submissions in support of their claim as its attempt in guiding the applicants
through the process, as opposed to being inappropriate as alleged by the
applicants. Lastly, in the absence of an adjournment request, the Board is not
required to offer an adjournment whenever there is a case involving a
self-represented claimant. In my view, to find otherwise would result in a
tremendous burden on the Board and the refugee claim process. Here, similar to Austria,
the Board met its obligation by confirming the applicants were ready to proceed
without counsel (certified tribunal record, page 158). Therefore, the hearing
was fair and the Board’s conduct did not breach procedural fairness.
[43]
Thirdly, I agree with the respondent that the
Board provided adequate reasons. The applicants argue that the reasons are too
brief and lack section 97 analysis. Under Townsend, Madam Justice Judith
Snider examined the adequacy of reasons at paragraph 22:
The purpose of reasons is to tell the person
concerned why a particular result was reached. Reasons allow the parties to see
that the applicable issues have been carefully considered and to effectuate any
right of appeal or judicial review (Baker v. Canada (Minister of Citizenship
and Immigration, [1999] 2 S.C.R. 817; VIA Rail, supra). What
constitutes adequate reasons will depend on the circumstances of each case (VIA
Rail, supra). The reasons requirement under the duty of fairness is
sufficiently flexible to permit various types of written explanations for the
decision to satisfy this requirement (Baker, supra at para. 40)…
[44]
In the present case, the Board did address major
points under section 97, such as state protection and IFAs and referenced the National
Documentation Package in doing so (see the third page of the Board’s decision).
Here, the Board reasoned the applicants did not seek state protection and since
the applicants returned to Sri Lanka multiple times and stayed there without
issue, the presumption of IFAs was not rebutted. Although no specific document
was referenced, the reasons do provide me with enough insight to determine why
a negative decision was reached. Therefore, the Board did provide adequate
reasons to meet its duty of fairness.
D.
Issue 4 - Was the Board’s decision reasonable?
[45]
The applicants argue the Board was unreasonable
in assessing state protection and IFA. In particular, they submit that first
the Board did not refer to any objective evidence that if state protection was
sought, adequate protection would have been forthcoming; and second, when the
state is involved as agents of persecution, it is an error of law to raise the
issue of IFA. The respondent submits although the police might have been
complicit in Battaramulla, the applicants did not explore other avenues of
protection in the country to rebut the state protection presumption; and it is
the applicants’ onus to show no IFAs are available. Here, I will first analyze
state protection and then IFA.
[46]
First, insofar as the state protection factor is
concerned, I am satisfied that the Board assessed state protection reasonably.
[47]
Mr. Justice Russel Zinn in Majoros v Canada
(Minister of Citizenship and Immigration), 2013 FC 421, [2013] FCJ No 447 [Majoros],
outlined at paragraph 10 that the role in seeking the protection of the state
in a refugee claim is a de facto requirement, not a legal requirement.
Here, the main question is would the applicants be more protected if they
sought state protection?
[48]
The Board accepted the applicants’ submission
that the police and army personnel from Battaramulla were involved in the
persecution; however, the applicants did not seek protection outside of
Battaramulla and provided no objective documentary evidence to prove this
persecution is state wide by the police and army personnel with the result that
no more protection would be provided even if state protection was sought. The
applicants thereby did not rebut the presumption of adequate state protection.
I agree with the respondent that the applicants must do more than rely on a
subjective assertion that they thought state protection would not be available
(see Mejia). Therefore, the applicants did not rebut the presumption of
adequate state protection.
[49]
Second, insofar as the IFA factor is concerned,
I agree with the respondent that the applicants did not meet their onus to show
no IFAs are available.
[50]
Pursuant to Rasaratnam and further
confirmed in Thirunavukkarasu, in determining whether a reasonable IFA
exists, it is well settled that an applicant bears the onus to prove that 1) on
a balance of probabilities, there is a serious possibility of persecution
throughout the country, including the area which is alleged to afford an IFA;
and 2) the conditions in the proposed IFA must be such that it would be
unreasonable, upon consideration of all the circumstances, including an
applicant’s personal circumstances, for an applicant to seek refuge.
[51]
Here, although the applicants submit that the
police and army personnel from Battaramulla were involved in the persecution,
they did not provide objective documentary evidence to prove this persecution
is state wide. This does not satisfy the first prong of the test showing that
there is a serious possibility of persecution throughout the country. Therefore,
the Board was reasonable to conclude IFAs are available.
[52]
For the reasons above, I would deny this
application for judicial review.
[53]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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