Docket: IMM-6847-13
Citation:
2015 FC 384
Ottawa, Ontario, March 26, 2015
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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JEGATHEESWARAN KULASEKARAM
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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
I.
Introduction
[1]
This judicial review concerns a young male
applicant who travelled on the MV Sun Sea. The Refugee Protection Division
[RPD] rejected his claim for refugee status and for protection.
II.
Background
[2]
The Applicant is a Tamil from Sri Lanka who claimed to leave Sri Lanka for fear of the security personnel and paramilitary groups,
the Eelam Peoples Democratic Party [EPDP] and the Karuna group.
[3]
In 2007, while in an IDP camp, he experienced
the occasional interrogation by security forces. After his move to Colombo as a goldsmith, he claimed that he had to bribe the police; later while in his
home town, he was harassed by a paramilitary group and finally in 2010, he fled
back to Colombo to escape harassment by the Karuna group, who allegedly are
still looking for him.
[4]
In early 2010 he fled to Thailand, and boarded the MV Sun Sea.
[5]
The RPD did not accept the notion that Sri
Lankan authorities suspected him of being a member of the Liberation Tigers of
Tamil Eelan [LTTE] or a LTTE supporter. There were multiple occasions where he
could have been apprehended if he was a “wanted” person. The RPD noted problems
with the Applicant’s story and the absence of corroborating evidence that he
was being sought by Sri Lankan authorities.
[6]
In the end, the RPD did not believe that the Applicant
was wanted by government security forces nor did it believe the evidence of his
subjective or objective fear.
[7]
The RPD was not persuaded that the Applicant
faced a risk upon return. The Applicant did not fit the description of those
who had encountered trouble upon return. In the incidents of returning Tamils
being questioned, the only detentions upon arrival related to outstanding
criminal charges not rejected refugee claims or on the basis of ethnicity.
[8]
Ultimately, the RPD concluded that there was
insufficient evidence that Canadian authorities share with Sri Lankan
authorities the identities of passengers on the MV Sun Sea nor that being a
passenger on the MV Sun Sea alone posed a risk of persecution.
III.
Analysis
[9]
The applicable standards of review are
reasonableness as to the decision as a whole (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190) and correctness on matters of procedural
fairness.
[10]
With respect to the RPD’s decision, and
particularly the sur place element, this Court has established in cases
such as Canada (Citizenship and Immigration) v B380, 2012 FC 1334, 421
FTR 138, that mere presence on the MV Sun Sea is insufficient to establish a sur
place claim.
[11]
The Applicant argues that the RPD engaged in a
flawed credibility assessment, failed to give an objective basis for that
assessment and failed to conduct a proper sur place analysis.
[12]
The RPD gave full and fair consideration to the
claim that the Applicant was suspected of being a LTTE or at least a supporter.
It was within the RPD’s jurisdiction to give varying weight to the relevant
evidentiary element in a reasonable objective manner – which it did.
[13]
On the matter of credibility, the RPD conducted
an independent analysis and assessed the objective and subjective elements of
the claim. This is the first step in the “mixed motive”
analysis referred to by Justice Zinn in Pillay v Canada (Citizenship and
Immigration), 2014 FC 160, 237 ACWS (3d) 1003 [Pillay].
[14]
As discussed in Pillay, at paragraph 7:
This Court has held that despite adverse
credibility findings, and despite a lack of history of prior association with
the LTTE, the combination of being Tamil and having been aboard the MV Sun Sea
may be sufficient to show a serious possibility of persecution as a result of a
Convention ground. This is known as the “mixed motives” doctrine.
[15]
In respect of the RPD’s sur place analysis, it considered the
personal profiles of those who encounter difficulties, and those who do not,
upon return to Sri Lanka.
[16]
I do not accept that the RPD inappropriately
conflated credibility concerns in respect of past incidents of alleged
persecution with credibility of the sur place basis of claim and ignored the critical facts that the Applicant’s
profile “changed” once he boarded the MV Sun Sea.
[17]
The RPD considered contrary evidence and
referred to the UK COI Report in reaching its conclusions. There is no error in
that.
[18]
The RPD first determined that the Applicant had
not been, prior to leaving Sri Lanka, a person of interest to authorities. This
is an important step both from the perspective of the Applicant’s claim that he
would be persecuted upon return because of his past experience (the credibility
aspect of his claim) as well as from the perspective of whether there was
“something more” in his sur place claim than mere presence on the MV Sun Sea.
[19]
There was nothing wrong with this approach by
the RPD as each of the MV Sun Sea cases turns on its specific facts. In this
instance, the Applicant’s circumstances were readily distinguishable from those
in Canada (Citizenship and Immigration) v B272, 2013 FC 870, 438 FTR
104, where that applicant had pre-existing perceived links to the LTTE before
boarding the MV Sun Sea which impacted the analysis of the sur place
claim.
[20]
The RPD did refer at paragraphs 14 and 31 of the
decision to the risk faced by the Applicant in terms of “balance of probabilities” but those comments were
made in the context of s 97. While it would have been preferable for the RPD to
make a specific finding on s 96 (more than a mere possibility) in the context
of the Applicant’s ethnicity relied upon in his sur
place claim, viewed as a whole in the context of
this case, I find no error in not doing so.
[21]
The Applicant had raised in his Memorandum a
breach of procedural fairness in not providing adequate reasons. This point was
not argued orally at the hearing.
[22]
I can find no inadequacy in these reasons. The
decision met the test in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at paragraph
16:
… In other words, if the reasons allow the
reviewing court to understand why the tribunal made its decision and permit it
to determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria are met.
[23]
The reasons have allowed this Court to determine
whether the decision is reasonable.
IV.
Conclusion
[24]
Therefore, this judicial review will be
dismissed. There is no question for certification.
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