Docket: IMM-6681-14
Citation:
2015 FC 450
Ottawa, Ontario, April 13, 2015
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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AB
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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 is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] by the Refugee Protection Division [RPD], rejecting the
Applicant’s claim to refugee protection under sections 96 and 97 of the IRPA.
II.
Factual Background
[2]
The Applicant is a male Tamil from Northern Sri
Lanka, who claims refugee protection on the basis of a fear of persecution by
the Sri Lankan army and security forces [SLA], Sri Lankan paramilitary groups,
and the Liberation Tigers of Tamil Eelam [LTTE].
[3]
In January 2006, in the context of the
progressive erosion of the Cease Fire Agreement entered between the Sri Lankan
government and the LTTE, and in the LTTE’S effort to recruit new members, the
Applicant was forcibly brought to an LTTE camp, where he was tortured.
[4]
On the third day of his detention by the LTTE,
the Applicant managed to escape and went into hiding. Shortly thereafter, on
suspicion of being an LTTE member on the basis of his Tamil ethnicity, the SLA and paramilitary groups brought the Applicant to a camp, where he was tortured. The
Applicant was beaten and administered electric shocks to his fingers.
[5]
In February 2006, the Applicant’s uncle
presented himself to the camp where the Applicant was held and bribed the SLA in exchange for the Applicant’s release.
[6]
With the help of his uncle, the Applicant fled Sri Lanka and worked in a third country under a false work permit.
[7]
With the help of an agent, the Applicant
traveled to Canada aboard the MV Sun Sea ship on August 13, 2010
and claimed refugee protection on October 7, 2010.
[8]
A hearing was held before the RPD on
March 13, 2014.
III.
Impugned Decision
[9]
By reasons dated August 21, 2014, the RPD
concludes that the Applicant is neither a Convention refugee nor a person in
need of protection under the IRPA.
[10]
Although, the RPD identifies some issues with
the evidence provided by the Applicant, the RPD finds the Applicant’s overall
testimony to be credible; however, the RPD concludes that the Applicant failed
to demonstrate the required objective basis of his fear, for the purposes of
sections 96 and 97 of the IRPA.
[11]
More precisely, the RPD concludes that on a
balance of probabilities, the Applicant’s “profile is
not one such that he would be at risk of being associated with the LTTE”,
that he had “no connections with the LTTE, nor was he,
or would he be, targeted by the government as a LTTE supporter” (RPD
Decision, at para 29).
[12]
In respect of the Applicant’s sur place
claim, as a passenger on the MV Sun Sea, the RPD concludes that the Applicant’s
profile is not one of heightened risk as a result of his manner of travel to Canada, nor does not face a risk contemplated by section 97 as a Tamil failed refugee
claimant returnee.
IV.
Legislative Provisions
[13]
The following provisions of the IRPA are
applicable to the RPD’s determination of refugee status:
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Convention
refugee
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Définition de
« réfugié »
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96. A Convention refugee is a person who, by reason of a
well-founded fear of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion,
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96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
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(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
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a) soit se trouve hors de tout pays dont
elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se
réclamer de la protection de chacun de ces pays;
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(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
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b) soit, si elle n’a pas de nationalité et
se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne
peut ni, du fait de cette crainte, ne veut y retourner.
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Person in need
of protection
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Personne à protéger
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97. (1) A person in need of protection is a person in Canada whose
removal to their country or countries of nationality or, if they do not have
a country of nationality, their country of former habitual residence, would
subject them personally
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97. (1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
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(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
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a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
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(b) to a
risk to their life or to a risk of cruel and unusual treatment or punishment
if
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b) soit à une menace à sa vie ou au risque
de traitements ou peines cruels et inusités dans le cas suivant :
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(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
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(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
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(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
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(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
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(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
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(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
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(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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(2) A person in
Canada who is a member of a class of persons prescribed by the regulations as
being in need of protection is also a person in need of protection.
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(2) A également
qualité de personne à protéger la personne qui se trouve au Canada et fait
partie d’une catégorie de personnes auxquelles est reconnu par règlement le
besoin de protection.
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V.
Standard of Review
[14]
The RPD’s assessment of the Applicant’s
credibility, and of whether the Applicant faces a risk upon return to Sri Lanka
are determinations of fact and of mixed fact and law, which are reviewable on
the deferential standard of reasonableness (S.A. v Canada (Minister of
Citizenship and Immigration), 2014 FC 146 at para 21; Sivanathan v
Canada (Minister of Citizenship and Immigration), 2014 FC 184 at paras 6
and 7 [Sivanathan]; Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 [Khosa]; Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190 [Dunsmuir]).
[15]
Therefore, it is not within this Court’s
jurisdiction to substitute its own view of a preferable outcome, or reweigh the
evidence (Dunsmuir, above at para 47; Khosa, above at para 59).
VI.
Arguments and Analysis
[16]
The Applicant puts forth five main arguments in
support of his claim, which the Court will address in turn.
A.
Standard of proof
[17]
First, the Applicant submits that the RPD
applied the incorrect burden of proof in determining whether the Applicant
falls within the meaning of sections 96 and 97 of the IRPA. According to the
Applicant, this error must be reviewed on the non-deferential standard of correctness.
In particular, the Applicant submits that the RPD applied a higher burden of
proof upon the Applicant of proving a probability of persecution, which
is inferred by the RPD’s use of words such as “personally
targeted”, “would he be”, “would be” and “seriously
suspected”.
[18]
The Court agrees with the Respondent’s view
according to which the RPD reasonably identified and applied the adequate legal
test in accordance with the jurisprudence.
[19]
First, the words used by the RPD, taken in
context, do not reflect an erroneous understanding or application of the
applicable analytical framework in respect of interpreting sections 96 and 97
of the IRPA (Thanapalasingam v Canada (Minister of Citizenship and
Immigration), 2013 FC 830 at paras 19 and 20).
[20]
Second, the Court’s view is grounded in the
distinction between the applicable standard of proof and the legal test to be
met. As summarized by the Court in Hinzman v Canada (Minister of Citizenship
and Immigration), 2006 FC 420 at para 184; aff’d in Hinzman v Canada (Minister of Citizenship and Immigration), 2007 FCA 171:
[184] A distinction has to be drawn between
the legal test to be applied in assessing the risk of future persecution, and
the standard of proof to be applied with respect to the facts underlying the
claim itself. While the legal test for persecution only requires a
demonstration that there is more than a mere possibility that the individual
will face persecution in the future, the standard of proof applicable to the
facts underlying the claim is that of the balance of probabilities: Adjei,
at p. 682. See also Li v. Canada (Minister of Citizenship and Immigration),
[2005] F.C.J. No. 1, 2005 FCA 1 at para. 9-14 and 29.
B.
The RPD’s credibility assessment
[21]
Third, the Applicant takes issues with the RPD’s
overall positive credibility finding in respect of the Applicant’s testimony –
which includes the Applicant’s arbitrary arrest, detention and torture, and
ultimate finding that the Applicant does not face persecution or risk to life,
harm, or unusual treatment as contemplated by the IRPA.
[22]
The Applicant maintains that the RPD was
compelled to clearly state its reasons for rejecting the Applicant’s
credibility in these respects.
[23]
The Respondent argues that the presumption of
truth of the Applicant’s testimony does not extend to the inferences the RPD
may draw from those facts. It was therefore reasonable for the RPD to find that
the Applicant was credible in his testimony, but to conclude that he was not,
at the time of the hearing, suspected of having links with the LTTE.
[24]
The Court observes that the RPD’s reasons are at
first glance ambiguous, to the extent that the RPD identifies credibility as
one of the “determinative issues i[n] this claim”
(RPD Decision, at para 11) while sustaining that the Applicant was generally
credible in his testimony and that the shortcomings in respect of the
Applicant’s documents are “insufficient on a balance of
probabilities to finding him not credible” (RPD Decision, at para 33).
[25]
A careful examination of the RPD’s reasons
reveals that the RPD’s findings in respect of credibility are consistent,
inherently logical, and anchored in the evidence.
[26]
It was not unreasonable for the RPD to conclude
on the one hand, that the Applicant was credible in his testimony, but to find,
on the other hand, that the Applicant did not establish the existence of more
than a mere possibility that he would face a risk to his life upon return to
Sri Lanka, as contemplated by section 97.
[27]
The RPD’s positive credibility findings in
respect of the Applicant’s detention and arrest, do not automatically lend themselves
to a finding that the Applicant would be subjected to persecution on the same
basis today, nor that he faces a prospective risk upon return to Sri Lanka for
having been suspected of LTTE support or membership, in the past.
C.
Applicant’s allegations of torture
[28]
Fourth, the Applicant takes issue with the RPD’s
determination that the Applicant was subjected to torture but that his “treatment was not so egregious as to support a claim for
compelling reasons” and that the “fact that his
torture was not sustained and that he was freed with a bribe suggest […] that
he would not be at a high risk of torture in the future” (RPD Decision,
at paras 41 and 60). According to the Applicant, the RPD’s conclusions imply
that it was necessary for the Applicant to have sustained torture for him to
demonstrate a well-founded fear of persecution in Sri Lanka. The Applicant
contends that the RPD unreasonably equaled torture with persecution, and that
its finding in this respect is not only speculative, but also an error in law.
[29]
The Court agrees with the Respondent that the
legal tests for refugee status determination are forward-looking and the onus
rests upon an applicant to demonstrate that, at the time of the hearing, he meets
the requirements of section 96 or of section 97 of the IRPA. Therefore, as
mentioned above, although past incidents of alleged persecution are possible
indicators of the risk of future persecution, proof of past persecution is not
sufficient, in and of itself, to form a basis to grant refugee protection under
the IRPA. Also, it has been found that the fact that a refugee claimant was
merely onboard the MV Sun Sea is not sufficient, in and of itself, to
establish a sur place claim (Sivanathan, above at para 12).
Moreover, “the fear of persecution must be
forward-looking and the risk must be personalized” (Thavachchelvam v Canada (Minister of Citizenship and Immigration), 2013 FC 83 at para 16).
[30]
The Court cannot accept the Applicant’s argument
according to which the RPD’s own findings that the Applicant could face arrest
and detention upon return to Sri Lanka is equivalent to an admission of the
well-foundedness of the Applicant’s objective fear.
[31]
Finally, the RPD’s finding of absence of “compelling reasons” for the purposes of subsection
108(4) of the IRPA is not unreasonable. A “compelling
reasons” assessment under subsection 108(4) does not need to be
undertaken in every case but rather should be made, for instance, when a
claimant was found to be a refugee but nevertheless had been denied refugee
status given the change of circumstances in the country of origin (Martinez
v Canada (Minister of Citizenship and Immigration), 2006 FC 343 at para 19;
Kalumba v Canada (Minister of Citizenship and Immigration), [2005] FCJ
879 at paras 18 and 19).
D.
The Applicant’s membership in the LTTE
[32]
Fourth, the Applicant argues that the RPD
created an unreasonable distinction between LTTE suspects who are “truly”, and those who are “not
truly” suspected of supporting the LTTE. According to the Applicant, the
RPD does so by recognizing on the one hand that the Applicant was questioned by
the SLA on the basis of possible ties with the LTTE, but that he was not, on
the other hand, “truly” suspected of such ties,
because it is unlikely that a bribe would have been accepted in exchange for
his release. The Applicant further submits that the RPD created a new category
of “true” LTTE suspects, which suggests that a
higher involvement in the LTTE is necessary for the Applicant to demonstrate a
well-founded fear of persecution.
[33]
The Respondent submits that the Applicant
expresses a disagreement with the RPD’s assessment of the evidence, which is
insufficient to warrant the Court’s intervention; the RPD was entitled to
attribute greater weight to some portions of the evidence, with supporting
reasons.
[34]
The Court considers that the Applicant’s reading
of the RPD’s findings fails to consider the RPD’s findings within their
inherent logic or context.
[35]
Consistent with the United Nations High
Commissioner for Refugees [UNHCR] Eligibility Guidelines for Assessing
the International Protection Needs of Asylum-Seekers from Sri Lanka of
July 5, 2014, this Court has stated that each claim must engage an
individualized assessment (B198 v Canada (Minister of Citizenship and
Immigration), 2013 FC 1106 at paras 17 and 51; P.M. v Canada (Minister
of Citizenship and Immigration), 2013 FC 77 at para 16 [P.M.]).
[36]
The RPD considered the Applicant’s testimony and
evidence provided, in conjunction with the documentary evidence which suggests
that returning Tamils are subjected to the same screening process for all
persons returning to Sri Lanka, regardless of whether they are returning on a
voluntary basis or as the result of a failed refugee claim, and with evidence attesting
to programs and initiatives which have been implemented since the end of the
armed conflict in April 2009 through which:
[…] former LTTE combatants and LTTE members
and many others suspected of having links with the LTTE have been mobilized and
have gone through a “rehabilitation” programme. This has been implemented by
the Rehabilitation and Prison Reform Ministry, under the overall guidance and
control of the Ministry of Defence. A total of 11,000 individuals with alleged
links to the LTTE – mostly former combatants, but also drivers, cooks and other
aides – have undergone this process (RPD Decision, 44).
[37]
The RPD further adds, in respect to the
Applicant’s individual circumstances:
The claimant has not alleged that he was
seriously suspected in the past of having links with the LTTE. He was able to
leave the country using his own passport and was not detained at the airport
security points as someone wanted by the government. I conclude that the
claimant was not suspected of having links with the LTTE.
The claimant has been away from Sri Lanka for over eight years. There is no evidence that he has participated with the LTTE
during his time outside the country. Returnees are subject to inspection when
arriving in Sri Lanka. Some groups have suggested that failed asylum claimants
are being tortured when questioned on their return. The same document provides
equally credible evidence that this is not occurring and that the UNHCR has
long-term monitoring programs for refugee returns. On balance, I find that the
claimant would not be at risk of cruel and unusual punishment or any other harm
on his return (RPD Decision, at paras 44 and 45).
[38]
The RPD then proceeds to evaluate the risk faced
by the Applicant upon return to Sri Lanka, as a passenger who traveled to Canada abroad the MV Sun Sea. Following a balanced review of the documentary
evidence and a number of factors, the RPD concludes that the Applicant does not
fit the profile of someone who would be suspected of having ties to the LTTE on
the basis of having traveled aboard the MV Sun Sea.
[39]
It was reasonably open to the RPD to find that
on a balance of probabilities, the Applicant was not suspected of LTTE
involvement or of having any association with the LTTE and that he therefore
lacked an objective basis to his alleged fear and risk upon return, which in
his particular circumstances, was detrimental to his claim.
[40]
As stated by Justice Catherine M. Kane, in Yathavarajan
v Canada (Minister of Citizenship and Immigration), 2014 FC 297 at para 64:
[64] The Board did not ignore any evidence;
rather, it attached greater weight to some evidence, identified the evidence
that it did not rely on and provided reasons for doing so. The Board conducted
an individualised assessment of the applicant and concluded that upon return to
Sri Lanka, he would be questioned, but that he would not face a risk to his
life, or a risk of cruel and unusual punishment or treatment, or a danger of
torture, because he would not be suspected or perceived to have ties to the
LTTE. The Board's decision is reasonable.
E.
The RPD’s assessment of the documentary evidence
and the Respondent’s duty to disclose
[41]
Finally, the Applicant argues that the RPD erred
in its assessment of the documentary evidence.
[42]
Upon review of the Certified Tribunal Record [CTR],
the Court is of the view that the RPD’s reasons reflect a careful weighing of
competing evidence, including evidence which demonstrated both that returning
Tamil Sri Lankans have faced torture upon return, as well as evidence which
pointed to a low probability that the Applicant would face a risk of harm upon
return. The RPD also acknowledged that the current situation in Sri Lanka is not perfect for Tamils, especially for those suspected of ties with the LTTE.
[43]
The Court finds that the RPD’s findings are
nuanced and anchored in the evidence, in conformity with the requirements of
transparency, intelligibility and justification. The Court adopts the reasoning
expressed by Justice Judith A. Snider in P.M., above at para 17:
[17] Moreover, and more importantly, the
decision is reviewable on a standard of reasonableness. It is possible for
different conclusions to be reached on similar facts. I acknowledge that the
Applicant put forward a rational line of reasoning for finding that the
Applicant was at risk because of his passage on the M/V Sun Sea. However, that
does not mean that the line of reasoning followed by the Board is unreasonable.
The existence of a range of possible outcomes is the hallmark of the
reasonableness standard and is the foundation of the deference owed to decision
makers. Whether this Applicant would face more than a mere possibility of
persecution is a factual question to be determined by the Board. While I or
another panel member might have come to a different conclusion, the decision of
this Board was reasonably open to it on this particular evidentiary record.
The Court should not intervene.
[Emphasis added.]
[44]
Finally, the Court rejects the Applicant’s
submission that the Respondent failed to meet his disclosure obligation, in
particular, of a declaration of another passenger of the MV Sun Sea,
(B016), who was detained and tortured upon return to Sri Lanka. Although each
and every case is a case to be assessed on its own merits, thus, on its own
evidence and any evidence which may be relevant thereto, the affidavit of
passenger B016 is included in exhibit C-5 in the CTR and was therefore not
omitted from disclosure.
VII.
Conclusion
[45]
In light of the foregoing, the Application must
be dismissed.
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