Docket: IMM-6132-14
Citation:
2015 FC 781
Ottawa, Ontario, June 24, 2015
PRESENT: The
Honourable Mr. Justice Zinn
|
BETWEEN:
|
|
RANGATHURAI KRISHNAPILLAI
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is a judicial review of a decision of the
Refugee Appeal Division [RAD] denying an appeal of a negative determination
made by the Refugee Protection Division [RPD]. For the reasons that follow,
this application will be dismissed.
[2]
The applicant, Rangathurai Krishnapillai, is a
citizen of Sri Lanka. He is a young Tamil male from the northern part of the
country. The RPD made its decision based on its finding that the applicant was
not credible. It held that his evidence was “confusing
and inconsistent” and that he “exaggerated
certain portions of his evidence.” Among other things, he testified
that the government was intent on annihilating the Tamil race and to that end
was chemically castrating young Tamil males and raping young Tamil females.
[3]
The applicant appealed to the RAD alleging that
the RPD erred in its assessment of his credibility and in not examining his
claim on the basis of credible evidence. In addition to these issues, the RAD
addressed the issue of the standard it was to apply on appeal from a decision
of the RPD. It held that it was to review the decision on the basis of
reasonableness and not correctness as was urged by the applicant.
[4]
The RAD found that the credibility analysis of
the RPD was reasonable, but that it had “failed to deal
with the issue at the heart of this claim, whether the [applicant’s] identity
as a young male Tamil is a reasonable basis for his subjective fear of
persecution.” Accordingly, the RAD did its own analysis of the risk
profile for young male Tamils returning to Sri Lanka and concluded there was
only a mere possibility the applicant would face persecution.
[5]
I reject the submission of the applicant that
the decision must be set aside for failing to apply the correctness standard on
appeal. I adopt the view expressed by Justice Noël in Yin v Canada
(Minister of Citizenship and Immigration), 2014 FC 1209 paras 35-39, that
it is appropriate for the RAD to employ a reasonableness analysis to
credibility findings made by the RPD. Therefore, the RAD did not err in
applying a reasonableness standard to the credibility findings. Further, it
acted within its jurisdiction as an appellate tribunal in conducting an independent
risk profile analysis.
[6]
I turn now to the remaining issue – was the risk
assessment of the RAD reasonable?
[7]
The applicant submits that it was not reasonable
because: (i) the RAD erred in imposing a requirement that the applicant have a
personalized risk as opposed to a generalized one; (ii) the RAD erred in not
finding that young Tamil males from northern Sri Lanka are perceived to be LTTE
supporters, which is a characteristic of this applicant in addition to being a
failed asylum claimant; (iii) the RAD erred in not examining the two bases of
the claim (young male Tamil from the north and a failed refugee claimant) on a
cumulative basis; and (iv) the RAD erred in basing part of its determination on
the applicant’s use of his own passport to leave Sri Lanka.
[8]
I am not persuaded that any of these alleged
errors occurred or were dispositive of the appeal.
[9]
In the present case
the RAD did not eliminate the possibility of a persecution finding based on
generalized risk; rather in doing its Convention refugee or person in need of
protection analysis, it only reasonably asserted that there needed to be a
minimum amount of evidence of personalized risk because the general risk was
only a mere possibility. The RAD cites Nagendrarasa v Canada (Minister of
Citizenship and Immigration), 2014 FC 618, which is similar to the present
case regarding the need for some evidence of personalized risk. Justice Roy
held that the person in need of protection analysis was reasonable.
[10]
The RAD examined the country
conditions documents and preferred and adopted the UNHCR 2010 and 2012
Guidelines which provide that one must assess each asylum case on its own
merits as there is no longer a presumption that young Tamil males from the
north are presumed to automatically require refugee protection.
[11]
The RAD considered
whether the applicant was at risk under each of his profiles – young Tamil male
from the north and returning failed refugee claimant – and found he was not at
risk under either analysis. There is nothing in the record to suggest that if
they had been looked at in a cumulative manner it would have led to a different
result.
[12]
I agree with the respondent
that “it was open to the RAD – especially in light of
the Applicant’s evidence which did not disclose anything that would show that
the Applicant was connected to the LTTE or that he would be perceived to have
any association with the LTTE – to consider the fact that he was able to leave
the Sri Lanka legally using his own passport.” While not in
itself determinative, it was in the parcel of evidence considered when
examining whether he was at risk as a young Tamil male from the north.
[13]
In summary, the decision as
a whole is reasonable. The RAD reasonably found that the applicant was not
perceived to be a member or supporter of LTTE. Furthermore, the finding that
being a young Tamil male from the north of Sri Lanka is not sufficient for
refugee protection was reasonable. The RAD reasonably relied on UNHCR Guidelines
and acknowledged evidence contrary to its conclusion.
[14]
Neither party proposed a
question for certification, nor is there one on these facts.
Email this Content