Docket: IMM-3242-13
Citation:
2015 FC 761
Ottawa, Ontario, June 17, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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B296
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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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PUBLIC REASONS FOR JUDGMENT AND JUDGMENT
(Confidential
Reasons for Judgment and Judgment issued May 25, 2015)
[1]
The applicant’s claim for refugee protection was
denied by the Refugee Protection Division of the Immigration and Refugee Board
of Canada (the Board). He now applies 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 applicant seeks an order setting aside the
negative decision and returning the matter to a different member of the Board
for redetermination.
I.
Background
[3]
The applicant is a male Tamil born in Jaffna,
Sri Lanka on […]. In 1999, he and his family moved to Vavuniya and lived there.
[4]
In the applicant’s amended Personal Information
Form (PIF), he alleged that in 2008, he along with others were rounded up for
identification of the Liberation Tamil Tigers of Eelam [LTTE]. The applicant
was tortured and interrogated about his connection to the LTTE and subsequently
released the following day after his parents’ intervention and the assistance from
the Grama Sevaka and his cricket coach. However, the applicant’s original PIF
contained no reference to him being arrested, interrogated, tortured,
fingerprinted and photographed.
[5]
In the applicant’s amended PIF, he alleged two
days later, his friend Rajan was abducted by the Eelam People’s Democratic
Party [EPDP] and disappeared. A few hours later, he and his friends were
arrested by army intelligence, taken to the Joseph Camp and detained as LTTE
supporters. He was tortured and interrogated about his friend Rajan’s
connections to the LTTE. He was released after a few hours. Upon release, he was
fingerprinted, photographed and warned about having any association with the
LTTE. Again, however, the applicant’s original PIF contained no reference to
him being arrested, interrogated, tortured, fingerprinted and photographed.
[6]
In 2010, the EPDP asked for support and
threatened the students’ organization in which the applicant belonged. It
assaulted members of student sport clubs and beat the applicant’s friend Krishna
to death. Later, after the applicant arrived home, his father told him that the
EPDP had come to kill him, believing he had interfered in their matters.
[7]
Subsequently, the applicant’s father sent him to
stay with a friend in Colombo. During that time, the applicant’s parents told
him that the EPDP had come looking for him. His entire family then moved to
Colombo.
[8]
In the applicant’s amended PIF, he alleged in
Colombo army intelligence and a member of the EPDP came to his home and ordered
his parents to have the applicant report to their camp in Modara. The applicant
reported to the camp and he was interrogated, tortured and forced to sign a
statement written in Sinhala. He was released the next day after payment of a
bribe of 100,000 rupees by his father with the assistance of a Muslim trader.
However, the applicant’s original PIF made no reference of him having to report
to the Modara army camp or that he was interrogated and tortured.
[9]
On May 4, 2010, the applicant made arrangements
to leave the country for Thailand. In Thailand, he boarded the Sun Sea
ship headed for Canada and arrived in Canada on August 13, 2010.
II.
Decision Under Review
[10]
In a written decision dated April 9, 2013, the
Board made a negative decision finding that the applicant is neither a
Convention refugee in accordance with section 96 nor is he a person in need of
protection in accordance with subsection 97(1) of the Act. The Board made the
findings in the following areas: credibility, fear of persecution, risk as a
failed asylum seeker, sur place claim and compelling reasons
under subsection 108(4) of the Act.
[11]
Insofar as the applicant’s credibility is
concerned, the Board made negative inferences from the omissions and
discrepancies between the applicant’s original PIF and his amended version of
the PIF. It found the article “Refugee Status Determinations and the Limits of
Memory” to be general and not specific to the applicant. Also, the Board
assigned no weight to the applicant’s psychological report, finding that
although the psychological report concluded that the applicant suffers from
chronic post-traumatic stress disorder (PTSD), it lacked persuasive findings to
indicate that the applicant was persecuted. Also, it did not accept the
credibility finding in the report. The Board noted survivors of civil war
typically experience some degree of trauma. It gave little weight on the
relationship between the applicant’s PTSD and his allegation of causes.
[12]
The Board found even in light of the
difficulties experienced by the applicant, his rationale for the significant
omissions in the original PIF is not satisfactory. It noted three omissions.
First, other than being ordered to appear before a masked man, the account of
the 2008 events in the original PIF contained no reference to the applicant
being arrested and subsequently interrogated and tortured. It noted the amended
PIF added the following new information. From the original PIF:
In 2008, the
army rounded the men in the area where I lived and ordered us to gather at the
playgrounds where we play cricket. We were produced one by one in front of a
masked person to be identified as LTTE supporters. Many were taken into custody
and most of them who were arrested went missing.
From the amended
PIF:
[. . .] Many were taken into custody
including me.
I was severely assaulted and interrogated.
They wanted to know my connections with the LTTE, the names of the LTTE
supporters in my area, etc. My parents, with the assistance of the Gramasevaga
and my cricket coach Illankumaran Attorney at Law, obtained my release the
following day.
[13]
The Board noted the second and the third
omissions are similar to the first one. The second omission concerns the
account of events immediately following the abduction of his friend, Rajan.
Unlike the amended version, the original version of the event contained no
reference to the applicant being arrested, interrogated, tortured, fingerprinted
and photographed. The third omission relates to the applicant’s experience
after moving to Colombo. Unlike the amended version, the original PIF only
stated “[i]n Colombo while I had gone out the army
along with a member of the EPDP had gone to our home looking for me.” It
made no reference to the applicant having to report to the Modara army camp, or
that he was interrogated and tortured.
[14]
The applicant explained that these omissions
were because he did not have enough time and his first counsel told him that he
could add additional information later. On account of the above omissions, the
Board found the explanation unsatisfactory. Therefore, the Board determined the
applicant was not credible.
[15]
Insofar as the applicant’s fear of persecution
is concerned, the Board examined his LTTE ties. It first reviewed the United
Nations High Commissioner for Refugees (UNHCR) Guidelines and noted the five
potential risk profiles. The Board noted the applicant was released after each
incident and was never detained longer than a day. He was able to travel within
the country using his own identity documents without any problems, obtained a
passport without difficulty and left the country without being questioned. It found
that there is insufficient trustworthy evidence to conclude that the applicant
has a well-founded fear of persecution based on his experiences in Sri Lanka.
[16]
Insofar as the risk of a failed asylum seeker is
concerned, the Board found the applicant did not establish that he would be
perceived to have LTTE ties so as to result in a heightened risk. It noted the
findings from a fact-finding trip organized by the International Organization
for Migration (IOM) that “[a] key theme with all the
persons interviewed was that they all said that they no longer had fears for
their personal safety.” It noted although the Sri Lankan government was
most likely aware of the organized visits by the international delegates, it
was not persuaded that this has affected the reliability of the reports.
[17]
The Board mentioned a few additional reports in
support. Nonetheless, it noted reports that suggest returnees are at a
heightened risk of being detained at the airport and at risk of torture should
the returnees have connections to the LTTE. The Board noted the applicant has
no history of having opposed the government. In light of the particular
circumstances of the applicant and the risk profiles in the UNHCR Guidelines,
the Board found that the applicant is not, on a balance of probabilities, a
person who is perceived to be linked to the LTTE. It thereby determined the
applicant does not have good grounds to fear persecution as a failed asylum seeker.
[18]
Insofar as the risk associated with the
applicant’s manner of arrival is concerned, the Board found on a balance of
probabilities, the Sri Lankan government would not perceive the applicant to be
a member and supporter of the LTTE simply on the basis of his travel on the Sun
Sea, given the applicant’s history in Sri Lanka before coming to Canada. It
first noted the criteria in the determination of a sur place claim and
quoted Article 96 of the United Nations Handbook on Procedures and Criteria
for Determining Refugee Status. However, it found that no credible evidence
has been proffered that the Sri Lankan government would suspect individuals as
having links to the LTTE by virtue of having been smuggled to Canada aboard a
ship owned and operated by the LTTE.
[19]
It subsequently noted although the arrival of the
Sun Sea generated significant interest on the part of the public and
government authorities in both Sri Lanka and here in Canada, the passengers
onboard have been granted refugee protection, afforded a hearing, or will be
afforded a hearing in the near future. Here, the applicant had not been
rendered inadmissible on criminal grounds by virtue of Article 1(F)(a),
indicating that he was deemed to not have affiliation to the LTTE. In
specifics, in determining the sur place claim, the Board considered i)
the applicant’s insistence that he has no links to the LTTE; ii) the
applicant’s lack of profile with Sri Lankan authorities; iii) the applicant was
granted a passport and allowed to leave the country; iv) there was no indication
that he had been involved with an anti-government organization during his time
in Canada; and v) Canadian authorities investigated whether he had links to the
LTTE, but released him and did not pursue inadmissibility proceedings. If the
Sri Lankan officials know or suspect that the applicant was aboard the Sun
Sea, they would also note that the applicant had already been subjected to
rigorous scrutiny by Canadian officials and subsequently released which may
place him in a better light should he return to Sri Lanka.
[20]
Insofar as subsection 108(4) of the Act is
concerned, the Board found in light of the credibility concerns, the applicant did
not meet the high threshold based on the applicant’s experiences and his
psychological report.
[21]
Therefore, the Board concluded that the
applicant is not a Convention refugee or a person in need of protection and
rejected his claim.
III.
Issues
[22]
The applicant raises one issue for my
consideration: whether the Board’s decision is unreasonable.
[23]
The respondent raises one issue in response: the
applicant has not raised a serious issue for judicial review.
[24]
In my view, there are two issues:
A.
What is the standard of review?
B.
Was the Board’s decision reasonable?
IV.
Applicant’s Written Submissions
[25]
The applicant submits that the applicable standard
of review is reasonableness.
[26]
First, he argues the Board failed to appreciate
that some of the additions on the PIF did not relate to the allegations of
persecution. He cites Feradov v Canada (Minister of Citizenship and
Immigration), 2007 FC 101 at paragraphs 18 and 19, [2007] FCJ No 135, which
states the Board should not be concerned about minor or collateral omissions
from an applicant’s PIF. He argues the amendments in each of the incidents the
Board was at issue with were merely expansions on the information provided in
the original PIF and were not a valid basis to question the applicant’s
credibility (see Puentes v Canada (Minister of Citizenship and Immigration),
2007 FC 1335 at paragraphs 18 and 19 [2007] FCJ No 1729).
[27]
The failure to report a fact can be a cause for
concern, but not always so depending on the circumstances (see Mohacsi v
Canada (Minister of Citizenship and Immigration), 2003 FCT 429 at paragraph
20, [2003] 4 FC 771). He points out the original PIF was completed while the
applicant was still detained in a Vancouver facility and was informed by the
immigration consultant that details could be added at a later date.
[28]
Also, the applicant disagrees with the Board’s
treatment of the psychological report. He argues the psychologist noted that he
had difficulty discussing his experiences, given that the events in Sri Lanka
remain painful memories for him. Here, the Board gave no weight towards the
allegations that the applicant was persecuted. He argues the report was not
submitted as support for his allegation of persecution, but rather to prove his
state of mind and to provide an explanation as to why more details were not
included in the original PIF. He also argues given that the Board had no
evidence to support its finding that all Tamils were exposed to civil war and
suffer from post-traumatic stress disorder, it was in no position to contradict
the psychologist’s findings and to afford the report little weight.
[29]
Second, the applicant disagrees with the Board’s
findings with respect to well-founded fear. He summarized his encounters with
the Sri Lankan authorities and argued that the Board’s simplistic finding that
the authorities have no interest in him because he was released following
detention is unreasonable (see B027 v Canada (Minister of Employment and
Immigration), 2013 FC 485 at paragraph 8, [2013] FCJ No 571 [B027]).
He further argues that his ability to travel within the country could be due to
few checkpoints in existence, instead of no interest from the government.
[30]
Third, the applicant disagrees with the Board’s
assessment of his risk as a failed asylum seeker. He submits it ignored
relevant evidence. He notes there is documentary evidence before the Board
indicating that violations of human rights remain rampant in Sri Lanka and the
small number of returnees interviewed by the delegation could hardly be
representative of the hundreds of failed asylum seekers. Also, since the
government interfered with the delegation’s finding, the report relied on by
the Board contains unreliable information.
[31]
He argues other reports should be adopted and
quotes portions from the United States Department of State Country Report on
Human Rights Practices in Sri Lanka. He also cites portions of the Amnesty
International Report that states “[f]ailed asylum
seekers have been tortured and jailed following their forced return to Sri
Lanka.” The applicant cites multiple sections from the documentary
evidence in further support of his position. He argues that individuals of
ethnicity and who are failed asylum seekers, are at a heightened risk upon
returning to Sri Lanka (see Veeravagu v Canada (Minister of Employment and
Immigration), [1992] FCJ No 468 at paragraph 4, 33 ACWS (3d) 1269).
[32]
Fourth, the applicant disagrees with the Board’s
assessment of the sur place claim. He submits that he has clearly
established a sur place claim on the basis that the Sri Lankan
government would perceive him as having ties to the LTTE. He argues the
government would suspect that the applicant has ties with the LTTE because he
travelled on a ship organized by LTTE operatives. He cites Canada
(Citizenship and Immigration) v B420, 2013 FC 321, [2013] FCJ No 396 [B420]
and Canada (Citizenship and Immigration) v A032, 2013 FC 322, [2013] FCJ
No 399 [A032]. He argues it was accepted that while the applicant would
not qualify for refugee protection as a member of a particular social group, “individuals who travelled on the ship, whether believed to
have faced past mistreatment or not, could face persecution on return or a risk
to life/risk of torture by virtue of perceived political opinion, arising as a
result of potential association with the LTTE on vessels which they travelled,
including the Sun Sea.”
[33]
Further, the applicant submits the Board’s
conclusion that since the Canadian authorities released him, he could produce a
copy of the Board’s decision which found him not to have links with the LTTE,
so that the Sri Lankan authorities would not suspect him of having ties to the
LTTE is completely illogical. He cites B027 at paragraph 9 that, this
approach is “over-simplistic” and Sri-Lankan
authorities would not be so bound. Therefore, the applicant submits the Board
failed to properly assess the nexus to the Convention refugee definition.
[34]
Fifth, the applicant disagrees with the Board’s
analysis of compelling reasons. He argues the Board speculated as to the cause
of his PTSD diagnosed in the psychological report and this makes the Board’s
finding unreasonable.
[35]
Lastly, the applicant submits that in light of
the above cumulatively, the Board’s decision was unreasonable.
V.
Respondent’s Written Submissions
[36]
The respondent submits the Board’s findings of
fact and mixed fact and law are subject to a deferential standard. It agrees
with the applicant that the standard of review is reasonableness (see Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraphs 47, 53 and 55, [2008] 1 S.C.R. 190 [Dunsmuir]).
[37]
First, it argues the Board’s findings of major
omissions were reasonable. It submits these omissions noted by the Board were
not minor or collateral, but rather the applicant wholly omitted from his
original PIF three allegations of being detained, interrogated and tortured
based on suspected links to the LTTE. The Board also considered the applicant’s
explanation for these omissions, but was not satisfied.
[38]
Second, the respondent argues the Board was not
required to mention or defer to psychological reports, or to find that the
major inconsistencies in the applicant’s story could be explained by his
psychological condition (see Syed v Canada (Minister of Citizenship and
Immigration), [2000] FCJ No 597 at paragraphs 19 and 20, 97 ACWS (3d) 305).
The report did not and could not establish the credibility of the applicant’s
refugee claim (see Kaur v Canada (Minister of Citizenship and Immigration),
2012 FC 1379 at paragraph 33, [2014] 2 FCR 3 [Kaur]); and it did not
give any indication that the applicant would forget about key persecutory
events altogether (Kaur at paragraphs 37 and 38). It submits the
psychological report did not overcome the significant credibility concerns
arising from the major omissions in the PIF.
[39]
Third, the respondent argues the Board was
reasonable to conclude that there was insufficient evidence to establish that
the applicant’s fear of persecution was well-founded. It submits the Board
reasonably considered the circumstances surrounding the applicant’s release and
his ability to travel within and out of the country. Here, the applicant’s
request is to reweigh the evidence in order to find in his favour.
[40]
Fourth, the respondent submits the Board’s risk
findings with respect to the applicant’s risk as a failed asylum seeker were
reasonable. Here, the applicant’s response to the Board’s findings is to
question the documents relied on, but he has not shown any evidence that the
Board’s findings were unreasonable. It argues that non-government organizations
may have difficulties operating in Sri Lanka in the course of its study, but
this does not render the Board’s reliance on the report unreasonable.
[41]
Also, the Board had no duty to refer to all of
the documentary evidence. Absent evidence of LTTE connection, returnees could
be detained and questioned, but would not face a serious possibility of
persecution or risk of torture (see Suppaiah v Canada (Minister of
Citizenship and Immigration), 2013 FC 429 at paragraphs 32 to 34, [2013]
FCJ No 460 [Suppaiah]). Here, the Board was reasonable to conclude that
considering all of the evidence, the applicant did not have good grounds to
fear persecution as a failed asylum seeker.
[42]
Fifth, the respondent submits the Board was
reasonable to find that the applicant is not a sur place refugee. Here,
the Board began its inquiry by considering the United Nations Handbook on
Procedures and Criteria for Determining Refugee Status. It accepted that
authorities had expressed significant interest in the Sun Sea arrival.
However, in light of the applicant’s circumstances and lack of profile with Sri
Lankan authorities, the Board was not persuaded that the applicant had
established a sur place claim.
[43]
The respondent then went on to distinguish the
case law cited by the applicant (A032 and B420). In A032, Chief
Justice Edmond Blanchard held that being a passenger on the Ocean Lady
was not the sole basis for a positive refugee finding (A032 at paragraph
18). Also, both of these decisions were rendered in the context of challenges
to positive findings. Such findings do not establish that the Board’s
conclusion here, rendered on a different record, was unreasonable. Also, in B027,
this Court ruled the clearance from Canadian authorities of an individual’s
LTTE ties would not bind Sri Lankan authorities. However, in the present case,
the lack of LTTE ties was only one of the five points the Board considered in
determining that the applicant had not established a sur place
claim. Therefore, the applicant’s arguments again concern the weight of the
evidence.
[44]
Sixth, the respondent submits the Board’s
finding under compelling reasons was reasonable and the applicant’s arguments
are based on the weight of the evidence.
VI.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[45]
With respect to the reasonability of the Board’s
decision, both the applicant and the respondent submit the standard of review
is reasonableness. I agree.
[46]
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; and Rahal v Canada (Minister of
Citizenship and Immigration), 2012 FC 319 at paragraphs 22 to 40, [2012]
FCJ No 369). 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; and Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at paragraph 43, [2009] 1 S.C.R. 339 at paragraph 59 [Khosa]). 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.
B.
Issue 2 - Was the Board’s decision reasonable?
[47]
The applicant is at issue with each one of the
Board’s findings: credibility, treatment of psychological report, well-founded
fear of persecution, failed asylum seeker, sur place and compelling
reasons under subsection 108(4) of the Act. I find the Board’s decision was
reasonable and the reasons for its findings were transparent and intelligible.
Below, I am going to deal with each one of the findings individually.
(1)
Credibility Finding
[48]
Insofar as the Board’s credibility finding is
concerned, I find the Board’s negative inferences were reasonable. It is well
established that the Board should not be concerned about minor or collateral
omissions from an applicant’s PIF (Feradov at paragraphs 18 and 19). Therefore,
the reasonableness of these negative inferences hinge on whether or not the
omissions constitute minor or collateral omissions.
[49]
The applicant argues the amendments were merely
expansions on the information provided in the original PIF and were not a valid
basis to question the applicant’s credibility (Puentes at paragraphs 18
and 19). The respondent argues the negative inferences are reasonable because
the applicant wholly omitted from his original PIF three allegations of being
detained, interrogated and tortured based on suspected links to the LTTE.
[50]
Here, the three omissions were: i) about the
2008 events, other than being ordered to appear before a masked man, the
original PIF contained no reference to the applicant being arrested and
subsequently interrogated and tortured; ii) about the events immediately
following the abduction of his friend, Rajan, unlike the amended version, the
original version of the event contained no reference of the applicant being
arrested, interrogated, tortured, fingerprinted and photographed; and iii)
about the applicant’s experience after moving to Colombo, unlike the amended
version, the original PIF made no reference to the applicant having to report
to the Modara army camp and was interrogated and tortured.
[51]
In my view, these omissions did expand on the
original PIF but they brought in brand new assertions that concern the
applicant’s allegations regarding the specific impact to his life. Although the
applicant explained that he was informed that he could add additional
information later, these omissions were essential and went to the root of his
claim. I can understand why the Board found it unreasonable that the applicant
did not at all mention his role in these events on his original PIF.
[52]
Insofar as the Board’s treatment of the
psychological report is concerned, I find the report did not negate the Board’s
credibility finding.
[53]
The applicant is of the view that since the
Board had no evidence to support its finding that all Tamils were exposed to
civil war and suffer from post-traumatic stress disorder, it was unreasonable
to assign the report little weight based on its assumption. The applicant
submits the psychological report was submitted to explain why some details were
not included in the original PIF. The respondent argues the psychological
report did not overcome the significant credibility concerns arising from the
major omissions in the PIF.
[54]
A psychological report cannot be used to
establish the credibility of the applicant’s refugee claim. In Kaur, Chief
Justice Paul Crampton found a psychological report is not sufficient to justify
an applicant’s failure to mention an important aspect in the PIF:
37 For example, the fact that the
report may, as in this case, state that an applicant's PTSD, or other
condition, causes the applicant to be fragile, confused, anxious, distressed or
emotional during questioning, or to dissociate under stress, ordinarily
would not reasonably explain a failure to mention an important aspect of the
applicant's story in his or her PIF. This is especially so when the PIF was
prepared with the assistance of counsel. Having regard to the above-mentioned
teachings in Newfoundland Nurses, Alberta Teachers and Halifax, it is also not
immediately apparent how such psychological conditions might suffice to deprive
an adverse credibility finding that was based on flagrant contradictions or
important discrepancies of its rational support or to deprive it of any
reasonable basis.
38 In my view, unless there is
something in a psychologist's report which strongly suggests that an
adverse credibility finding made by the Board was unreasonable, it would be
inconsistent with the Supreme Court's teachings to require the Board to
specifically address the report or anything in the report in making such a
finding. That is to say, this would be inconsistent with the Supreme
Court's position that reviewing courts should not interfere when there is any
reasonable basis in the evidence for the conclusion reached by the Board, or
when the decision can be rationally supported. It would also be
inconsistent with the emphasis that the Supreme Court has now repeatedly given
to the need for reviewing courts to give respectful deference to the findings
of administrative tribunals. This is particularly so with respect to matters of
credibility, which “are at the very heart of the task Parliament has chose to
leave to the [Board]” (Rahal v Canada (Minister of Citizenship and
Immigration), 2012 FC 319 at para 60 (available on CanLII)).
[Original emphasis with underline; my
emphasis in bold]
[55]
Although I agree with the applicant that the
Board should not have speculated that all Tamils were exposed to civil war and
suffer from post-traumatic stress disorder without any support from the
documentary evidence, this error cannot be said to negate the Board’s
credibility finding. Here, I do not find any prevailing details in the psychological
report that would strongly suggest that the Board’s adverse credibility finding
was unreasonable.
[56]
Therefore, I am satisfied that with the
psychological report, the Board was reasonable in making negative inferences
and finding the applicant not credible.
(2)
Fear of Persecution
[57]
Insofar as the Board’s finding regarding the
applicant’s fear of persecution is concerned, I find the Board’s determination
was reasonable.
[58]
The applicant argues the Board’s finding was too
simplistic and he provides an alternative explanation for his ability to travel
within the country. The respondent is of the view that the Board reasonably
considered the circumstances surrounding the applicant’s release and his
ability to travel within and out of the country. It submits the applicant’s
arguments hinge on a request to reweigh the evidence.
[59]
In my view, the Board’s analysis is far from
being simplistic. It first looked at the UNHCR Guidelines and noted the five
potential risk profiles. It then examined the circumstances surrounding each of
the applicant’s detainments, his ability to travel within the country and the
circumstances surrounding the applicant’s departure. It found that there was
insufficient trustworthy evidence to conclude that the applicant had a well-founded
fear of persecution based on his experiences in Sri Lanka. I find the analysis
was thorough and the reasons are transparent to me. Therefore, there is no
error.
(3)
Failed Asylum Seeker
[60]
Insofar as the Board’s finding with respect to
the applicant’s risk as a failed asylum seeker is concerned, I find the Board’s
determination was reasonable.
[61]
The applicant is of the view that the reports
relied on by the Board were unreliable and the findings from other reports
should be adopted. The respondent submits the applicant’s arguments do not show
that the Board’s finding was unreasonable.
[62]
Here, I agree with the respondent that absent
evidence of LTTE connections, although returnees could be detained and
questioned, they would not face a serious possibility of persecution or risk of
torture. Mr. Justice Yves de Montigny set this out in Suppaiah at
paragraph 34:
The Applicant submitted to the IRB that he
would still be at risk if he returned to Sri Lanka because he could be targeted
by way of suspicion of LTTE involvement. Without further details, this is clearly
insufficient. As Justice Tremblay-Lamer wrote in Marthandan v Canada
(MCI), 2012 FC 628 (at para 20):
To benefit from Canada's protection
under section 97 of the IRPA, the applicant must show the probable existence of
personal danger, i.e. danger to which other people from or in the country are
generally not exposed (see Guifarro v Canada (Minister of Citizenship and
Immigration), 2011 FC 182, [2011] F.C.J. No. 222 (QL) and Prophète v
Canada (Minister of Citizenship and Immigration), 2009 FCA 31, [2009]
F.C.J. No. 143 (QL)). The mere fact of being a young Tamil man from the east of
Sri Lanka does not constitute personal danger. The panel found that the SLA's
acts toward the applicant seemed to have always been instigated by the
Pillaiyan group, and that he was able to obtain a Sri Lankan passport and leave
the country, despite the fact that the Tamils in the north and east are subject
to heightened attention from the authorities. By taking these factors into
account, and considering that he has never had ties to the LTTE and that the
Sri Lanka government released thousands of members of the LTTE, the panel
concluded that the interest of the Sri Lankan authorities in the applicant, if
there is any, is minimal and that there is only a mere possibility of his being
persecuted in Trincomalee or elsewhere in the country. I am of the opinion that
the decision of the panel falls within possible, acceptable outcomes.
[Emphasis added]
[63]
In the present case, since the applicant has not
established that he would be perceived to have LTTE ties, the Board found that
based on the documentary evidence, the applicant would not be under a
heightened risk as a failed asylum seeker. I do not find the Board committed a reviewable
error in this determination.
(4)
Sur Place Claim
[64]
Insofar as the Board’s finding of the
applicant’s sur place claim is concerned, I find the Board’s
determination was intelligible and defensible.
[65]
The applicant is of the view that he has clearly
established a sur place claim on the basis that the Sri Lankan
government would perceive him as having ties to the LTTE. In support, the
applicant relies on B420 and A032. The respondent argues the
Board was reasonable to find the applicant failed to establish a sur place
claim in light of his circumstances and the lack of profile with Sri Lankan
authorities. The respondent argues the present case can be distinguished from B420
and A032.
[66]
In B420, this Court dismissed the
Minister’s application and confirmed the Board’s positive decision. In that
case, the Board found the claimant established membership in a particular
social group as a passenger on the MV Sun Sea and expressly found that
the claimant would face persecution on the basis of perceived political opinion
and implicitly on the basis of his ethnicity and race.
[67]
In A032, Chief Justice Blanchard held
that being a passenger on the Ocean Lady was not the sole basis for a
positive finding (A032 at paragraph 18). However, he confirmed the
Board’s decision in allowing a sur place claim in light of the events
relating to the publicity surrounding the voyage of the Ocean Lady
relating to its ownership by the LTTE, its history and its suspected LTTE
passenger. There, the Board in A032 found the claimant’s link to the
LTTE was established.
[68]
In my view, both of these cases can be
distinguished from the present case. In both of the above cases, the judicial
review was filed by the Minister to challenge a positive decision made by the
Board. The Board in those cases not only found a sur place claim was
established, but it also partly based this determination of the sur place
claim on the claimant’s perceived LTTE ties and other Convention grounds.
Unlike the case at bar, the claimants in these two cases had established their
perceived LTTE ties.
[69]
Also, in conducting its analysis, the Board was
not overly simplistic as alleged by the applicant. The respondent was right to
point out that LTTE ties was only one of the five points the Board considered
in determining that the applicant had not established a sur place claim.
Here, in light of the applicant’s circumstances and lack of profile with Sri
Lankan authorities, I find it reasonable that the Board was not persuaded of a
successful sur place claim.
(5)
Compelling Reasons
[70]
Insofar as the Board’s analysis under subsection
108(4) is concerned, I find the Board’s determination was reasonable.
[71]
The applicant argues since the Board speculated
as to the cause of his PTSD despite the information in the psychological
report, this makes the Board’s finding under subsection 108(4) unreasonable. The
respondent argues the applicant’s arguments hinge on the weight of the
evidence. Here, the Board found, based on the applicant’s experiences and his
psychological report in light of credibility concerns, he did not meet the high
threshold under subsection 108(4).
[72]
Subsection 108(1) of the Act provides that if a
claimant does not qualify under sections 96 and 97, the refugee claim would be
rejected. Subsection 108(4) provides for an exemption under special
circumstances.
[73]
Here, the Board’s speculation with respect to
the psychological report did not negate the reasonableness of its overall
determination. Its analysis was not solely based on the weight assigned to the
psychological report, but it was also based on the applicant’s experiences as
well as its credibility findings. In light of all the evidence, I find the
Board was reasonable to determine the applicant did not meet the threshold
under subsection 108(4).
[74]
Finally, all the findings when assessed
cumulatively also indicate the Board’s decision was reasonable. Therefore, I
find no reviewable error in the Board’s decision.
[75]
For the reasons above, I would deny this
application for judicial review.
[76]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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