Docket: IMM-7908-13
Citation:
2015 FC 470
Montréal, Quebec, April 15, 2015
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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RAJMOHAN
MAHALINGAM
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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.
Nature of the Matter
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA) of the November 27, 2013 decision (the decision) of
the Refugee Protection Division (RPD) of the Immigration and Refugee Board,
wherein the RPD determined that the applicant is not a convention refugee and
is not a person in need of protection pursuant to section 96 and paragraphs
97(1)(a) and (b) of the IRPA.
II.
Facts
[2]
The applicant is a Tamil from the north of Sri
Lanka. He came to Canada on June 30, 2010.
[3]
The applicant alleges that as a young Tamil he
was often detained and harassed by the army, as he is from the town of
Uduppiddy. This area was under surveillance due to its proximity to where the leader
of the Liberation Tigers of Tamil Eelam (LTTE) was from.
[4]
In 2009, the army discovered weapons buried in
the house next to the applicant’s place of residence. As a result, the
applicant was arrested along with other young male Tamils. During his detention,
the applicant was beaten with guns and interrogated about his alleged support
for the LTTE. He was released five days later after his father paid a bribe.
[5]
In January 2010, the applicant was arrested at
an army checkpoint as he was suspected of being an LTTE supporter. He was
beaten and asked to identify LTTE members and supporters shown in photographs.
He answered that he did not recognize them. He was then put in front of a
masked man who was instructed to nod if he recognized anyone associated with the
LTTE. The masked man did not recognize him. The applicant alleges that, upon
his release the following day, the army warned him that should he be arrested
again he would be killed.
[6]
It was at this point that the applicant decided
to leave Sri Lanka. In February 2010, the applicant hid in a lodge in the city
of Colombo. During his second day in Colombo, he was warned by a group of
people in a white van that he must leave Colombo or he would be sent to a
detention camp.
[7]
The applicant left Sri Lanka on March 4, 2010,
and came to Canada on June 30, 2010, using a genuine passport obtained in
Colombo. The applicant alleges that an agent helped him obtain a passport and
told him which counter to go to at the airport to be able to leave Sri Lanka.
III.
Decision
[8]
The RPD considered that the applicant did not
have a well-founded fear of persecution if he were to return to Sri Lanka for
the following reasons:
- The country
documentation reveals that the situation is improving for Tamils in Sri
Lanka who are not suspected of having links with the LTTE.
- Though the
country documentation paints a confusing picture as to who is at risk and
why, the documents supplied by the United Nations High Commissioner for Refugees
(UNHCR) are preferable.
- One UNHRC
document indicates that individuals with certain profiles are still at
risk, but the applicant fits none of these profiles.
- The applicant
did not provide any persuasive evidence that he would be perceived to be a
supporter of the LTTE. Though the applicant was detained twice, he was released
the first time after five days upon the payment of a bribe, and the second
time after one day after a state informant failed to identify him as an
LTTE supporter. If the applicant had been perceived as an LTTE supporter,
he would not have been released. Moreover, the applicant was also allowed
to pass through checkpoints on his way to Colombo.
- The fact that
the applicant’s brother was a successful refugee claimant in Canada would
not be a factor in the Sri Lankan authorities forming the belief that the
applicant is an LTTE in the absence of any evidence that his brother was
himself associated with the LTTE.
- If the applicant
had been wanted by the Sri Lankan authorities, he would not have been able
to obtain an authentic passport and leave Sri Lanka, even with the help of
an agent/smuggler.
- The people in a
white van who allegedly warned the applicant to leave Sri Lanka when he
was in Colombo are unknown and their intentions were unclear.
- It is
implausible that the army would have looked for the applicant five times,
as he alleges. They know that he had left the country since he used his
own genuine passport. Moreover, there is no indication that the army has
threatened or harmed the applicant’s family since he left the country.
- The UNHCR does
not consider a failed asylum claimant returning from abroad to be at
particular risk.
- Documentation by
the United Kingdom Boarder Agency indicates that more sophisticated record
keeping in Sri Lanka substantially reduces the risk that a person of no
real interest for the authorities will be arrested or detained.
- The
documentation indicates that, though the applicant will be subject to
controls by the authorities upon his return to Sri Lanka, they are mainly
seeking information about human trafficking and smuggling. Returnees are
interviewed at the airport, and criminal background checks are done, but
there is insufficient evidence that the applicant would be subjected to
mistreatments due to his particular profile.
IV.
Issue
[9]
This matter raises the following issue:
- Did the RPD err
in concluding that the applicant does not have a well-founded fear of
persecution?
V.
Analysis
A.
Standard of review
[10]
The present case turns on the appreciation of
the evidence which is reviewable on the standard of reasonableness (Balasubramaniam
v Canada (Citizenship and Immigration), 2013 FC 698 at para 24 (Balasubramaniam)).
B.
The well-founded fear of persecution
[11]
The applicant argues that the RPD “erred in law in its conclusion that the [a]pplicant’s
release from detention showed that the authorities did not suspect him to be
associated with the LTTE.” The applicant argues that this conclusion
ignores the documentary evidence. Though there is documentation indicating that
bribery is a typical manner of escaping detention in Sri Lanka, I note that
there is no indication that the applicant’s second release from detention was
the result of a bribe. I am not prepared to conclude that the RPD failed to
appreciate the evidence on this issue, as argued by the applicant.
[12]
The applicant argues that it was unreasonable
for the RPD to draw an inference from the fact that the applicant could leave
his country using his own passport with the help of an agent. In my view, such
an inference was reasonable and open to the RPD (Zeng v Canada (Citizenship
and Immigration), 2014 FC 1060 at para 11).
[13]
The applicant argues that the RPD erred in law
in concluding that the authorities did not target him since he was released
from detention twice and was subsequently allowed to go through checkpoints. To
support his argument, the applicant refers to Justice Barnes’ decision in Rayappu
v Canada (Citizenship and Immigration), October 24, 2012, Docket:
IMM-8712-11 (unreported) (Rayappu), which concluded that such an
assessment of the evidence was overly simplistic. The respondent argues that Rayappu
is distinguishable on the facts. I agree with the respondent. Mr. Rayappu’s
second detention “culminated in the theft of a
considerable sum of money (ostensibly being carried by Mr. Rayappu on behalf of
the [LTTE]).” Because of this association with the LTTE, Mr. Rayappu was
likely to face persecution upon his return to Sri Lanka even if he was not on
the official wanted list of LTTE suspects or sympathizers. In the present case,
there is no evidence that the Sri Lanka authorities still consider the
applicant to be an LTTE supporter. While it is true that the authorities in Sri
Lanka detained the applicant in January 2010, the state informant did not
identify him as an LTTE supporter, and he was released after only one day of
detention, apparently without the payment of bribe.
[14]
The RPD did consider the applicant’s specific
situation as a young male Tamil, but it concluded that he would not be at risk
of persecution if he returns to Sri Lanka. After reviewing the documentary
evidence, the RPD concluded that Sri Lanka is evolving. I am satisfied that the
RPD’s conclusion in this regard was reasonable.
[15]
The applicant argues that the RPD “erred in law [and unduly fettered its discretion] by relying
exclusively on the five specific categories of asylum seekers from Sri Lanka
identified in the UNHCR Guidelines to support its finding that the [a]pplicant
did not have a well-founded fear of persecution.” As alluded to above,
the RPD stated that “different documents paint a
confusing picture as to who is at risk and why”, and decided to rely on
the documentation supplied by the UNHCR. The RPD referred specifically to the
following passage of the UNHCR Eligibility Guidelines for Assessing the
International Protection Needs of Asylum-Seekers from Sri Lanka (UNHCR
Guidelines) dated July 5, 2010:
Given the cessation of hostilities, Sri
Lankans originating from the north of the country are no longer in need of
international protection under broader refugee criteria or complementary forms
of protection solely on the basis of risk of indiscriminate harm. In light of
the improved human rights and security situation in Sri Lanka, there is no
longer a need for group-based protection mechanisms or for a presumption of
eligibility for Sri Lankans of Tamil ethnicity originating from the north of
the country.
[Emphasis added.]
[16]
The RPD also considered that, while “risk profiles” according to the UNHCR documentation
include suspected supporters of the LTTE, the applicant provided no persuasive
evidence that he would be perceived to be a supporter of the LTTE if he returns
to Sri Lanka. In my opinion, it was reasonable for the RPD to select the
documentation supplied by the UNHCR over other documentation contained in the
National Documentation Packages even when such other documentation contains
contradictory information. First, it is trite law that the RPD is not obliged
to comment on every piece of evidence adduced by a refugee claimant when it
deals with contradictory evidence as long as it properly deals with the
evidence (Balasubramaniam at para 57). Second, the RPD provided a clear
and reasonable explanation for preferring the UNCHR documentation (Makhtar v
Canada (Citizenship & Immigration), 2004 FC 16 at para 11).
[17]
The applicant criticizes the finding at
paragraph 30 of the decision that the applicant:
was detained as part of an overall policy by
authorities that, at the time of his arrests, were especially concerned with
having to face “a second front” in Colombo from Tamils who might have supported
and assisted the LTTE.
[18]
The applicant argues that there is no evidence
of any concern about “a second front”. The
applicant also noted that the arrests in issue did not even occur in Colombo.
The applicant urges me to conclude that the RPD must have used specialized
knowledge to make this finding and that the failure to put this specialized
knowledge to the applicant for comment constituted a breach of the duty of
procedural fairness. In my view, the circumstances surrounding the applicant’s
arrests do suggest a general concern about a possible resurgence of the LTTE. Noting
that the RPD’s choice of words was informal and imprecise, and noting that
Colombo is the capital of Sri Lanka’s government, I understand the RPD’s
reference to a second front in Colombo to be an allusion to such a possible
resurgence. Accordingly, I do not believe that the RPD applied specialized
knowledge of which the applicant was not aware.
[19]
With respect to the risk that the applicant
might face as a failed asylum seeker, the applicant argues that the RPD made an
incomplete assessment of the evidence by failing to consider more recent
evidence before it. He refers to recent reports of detention, ill-treatment,
and torture of failed asylum seekers, as mentioned in the UNHCR Guidelines.
However, these reports do not supersede the UNHCR’s overall conclusion that
those without suspected links to the LTTE (or other risk profiles) are unlikely
to be targeted.
[20]
The applicant also argues that the RPD should
have considered the UK Border Agency Operational Guidance Note on Sri Lanka
dated April 2012, which refers to detention and torture of non-asylum seekers
who returned voluntarily to Sri Lanka from abroad. Though this document is
concerning and confirms that the documentary evidence contains some
contradictions, I remain of the view that it was open to the RPD to prefer
certain documents over others. I am not satisfied that the RPD failed to
consider such documents.
VI.
Conclusion
[21]
The present application should be dismissed.
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