Docket: IMM-6383-14
Citation:
2015 FC 849
Ottawa, Ontario, July 14, 2015
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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PAVITHRAN PAUL JOSEPH SELVARASU
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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
[1]
This is an application for judicial review of
the August 8, 2014 decision of the Refugee Protection Division (RPD) of the
Immigration and Refugee Board, in which it was determined that the applicant is
not a Convention refugee, nor a person in need of protection, pursuant to
sections 96 and 97 of the Immigration and Refugee Protection Act, SC
2001, c 27 (IRPA). The RPD concluded that the determinative issues were
identity and credibility. The applicant is arguing that the RPD’s assessment of
the evidence going to his identity, its assessment of his credibility, and its
assessment of his residual profile were all unreasonable.
[2]
For the reasons set out below, the application
for judicial review is allowed and the matter is referred to the RPD for
re-determination by a different panel member.
I.
Background
[3]
The applicant is a citizen of Sri Lanka of Tamil
ethnicity. He is from the city of Batticaloa, but moved to Jaffna to study
English at a private language school in order to pass his English exams. He
claims that on November 24, 2012, military officials attended at the building
where he was studying and checked identification documents of all those
present. There were no problems during this encounter. However, on November 27,
2012, which was Liberation Tigers of Tamil Eelam (LTTE) Hero’s Day, there was a
riot at Jaffna University and the applicant was arrested because he was an
out-of-province student. He was taken into custody, was severely beaten and was
released the next day. Following advice from his father, and given that he had
done nothing wrong, he returned to his studies.
[4]
The applicant claims that on January 21, 2013,
he was arrested by the military once again when returning from school in the
evening. He claims to have been tortured for four days at a military camp. He
made an agreement with his detainers to release him on January 25, 2013 to meet
with his uncle, under the condition that he would return into custody the same
evening. He was once again detained, this time for ten months, and was forced
to work on developing for the military a software program into which he was
subsequently required to input data about Tamil families.
[5]
The applicant was released on December 12, 2013
so that he could see his family. He was told that he would have to return on
December 29, 2013. Instead, his father made arrangements for him to leave Sri
Lanka for Canada. He left Sri Lanka on December 26, 2013 and had a four-day
layover in France before arriving in the United States. He stayed at Vive La
Casa, a shelter for refugee claimants in Buffalo, until he crossed the border
into Canada on February 25, 2014, where he claimed refugee status.
II.
RPD Decision
[6]
The RPD found that the applicant was not a
Convention refugee, nor a person in need of protection. The determinative
issues were identity and credibility.
[7]
The RPD began by addressing a lack of
credibility in the applicant’s evidence as to his identity. The applicant had
not produced a Sri Lankan passport to show he was a national of that country,
and the RPD found there was a lack of credibility in his account of the
existence of a Sri Lankan passport, which he testified he had been forced to
surrender to his agent in France. The applicant provided inconsistent
statements regarding the issuance of a passport: at the first sitting of the
hearing, he indicated that his passport was obtained through proper channels,
and at the second sitting of the hearing, he indicated that it was obtained
through a bribe. His explanation was that he did not know about the bribe
before speaking to his father after the first sitting. The panel did not
believe this explanation, concluding that it was not credible that he would not
have been informed, or have taken steps to inform himself, as to how his
passport had been obtained. The panel also indicated that it was not plausible
that a letter from his father, sent to provide explanations with respect to his
identity documents, would not also have mentioned recent developments regarding
the military visiting his family home and looking for him, which were part of
the applicant’s claim.
[8]
The RPD also noted that the applicant had not
produced an original National Identity Card (NIC) and found that there was a
lack of credible evidence as to its existence. The applicant produced a
certified true copy of his NIC, but the RPD did not find this to be a reliable
document. The applicant testified at the first sitting of the hearing that a
lawyer in Sri Lanka certified the copy after the applicant had left Sri Lanka
with the original. He then changed his evidence at the second hearing after
consulting with his father and confirmed that the copy had been certified using
the original NIC before the applicant left Sri Lanka. The RPD did not accept
this explanation.
[9]
The RPD also found to be unreliable a
Certificate from the Register of Births produced by the applicant, because the
date of issue was in 2012 and the applicant was not able to explain why the
certificate had been issued on this date.
[10]
Overall, the RPD found that the applicant was
tailoring his account as the need arose through the hearing.
[11]
The RPD also held that the findings of identity
by the US authorities and at the Canadian Port of Entry did not assist in
establishing the applicant’s identity and that the applicant’s ability to speak
Tamil and English was not sufficient to demonstrate his identity.
[12]
The RPD then addressed the lack of credibility
in the applicant’s explanation as to why he feared persecution. It first stated
that there was no identity established with which the account for fearing
persecution could be associated. The RPD then concluded that there were
material unresolved credibility issues in his account as to why he feared
persecution.
[13]
The RPD noted that a letter the applicant
provided from his bishop contradicted his testimony regarding the period of
time for which he was detained. The RPD did not accept the applicant’s
explanation for the contradiction. There were also material omissions in the
account the applicant provided to the US officials in his credible fear
interview, given that the applicant did not disclose that he had been detained
for 10 months in 2013. The applicant stated that it was on the advice of his
lawyer that he did not disclose this information, but he provided no evidence
from his lawyer to support this explanation, which the RPD did not accept. The RPD
also found that the applicant’s account of having had a tracking chip embedded
by the military and subsequently removed was not credible. The applicant stated
that he had it removed in a particular town, but the letter from the clinic
stated a different (albeit bordering) town. The RPD once again did not accept
his explanation for the inconsistency.
[14]
The RPD also placed little weight on medical
reports adduced by the applicant. The first report was lacking an opinion that
the applicant’s scars were consistent with the trauma he described. The RPD
found that the second report, from the applicant’s psychiatrist, did not allay the
RPD’s concerns respecting the credibility issues and that the report was
providing an opinion on the legal issue that the RPD was tasked with deciding.
[15]
On this basis, the RPD concluded that the
applicant had not established that there was a reasonable chance that he would
be persecuted were he to return to Sri Lanka or that he would face a risk that
would subject him personally to a danger, believed on substantial grounds to
exist, of torture or to a risk to his life or to a risk of cruel and unusual
treatment or punishment. The RPD referred to the applicable country condition
documentation and held that the applicant had failed to establish identity to
which any of the risk profiles identified therein would apply. Finally, the RPD
found that there was no applicable residual risk profile of the sort raised by
the applicant, related to being a young Tamil male from the Eastern province
who had previously worked for an NGO and who would become a returning failed
asylum seeker from Canada.
III.
Applicant’s Submissions
[16]
The applicant first submits that the RPD erred
in assessing his identity, by ignoring or arbitrarily rejecting all the evidence
relevant to establishing identity. While s. 106 of the IRPA and s. 11 of the Refugee
Protection Division Rules, SOR/2012-256 (RPD Rules) make it
mandatory for the RPD to consider the identity of the claimant, there was ample
evidence on the identity of the applicant in this case. Additionally, the US
authorities and the Canadian authorities found he had established his identity.
[17]
The applicant then submits that the RPD erred in
assessing the applicant’s credibility by allowing the identity findings to colour
the credibility determination, by engaging in an overly microscopic assessment,
by relying on discrepancies which were not material and by refusing to consider
reasonable explanations and proof to resolve inconsistencies. The RPD
explicitly found that the lack of a passport was a negative credibility factor,
an inference which the applicant argues this Court has found to be unreasonable
(Nishanthan v Canada (MCI), [1999] FCJ No 1673, at para 28), and that it
was not credible that the agent would have taken his passport. The RPD also
drew a negative inference from the applicant’ explanation on how the passport
was obtained. The applicant clearly stated at the first hearing that he did not
have any information on this, and that the only information he had was from his
father. He then provided the correct information from his father at the second
sitting. The applicant also argues that the RPD rejected his explanation by making
improper implausibility findings.
[18]
The applicant also argues that the RPD’s
conclusions regarding the NIC were unreasonable. The applicant provided a
certified true copy and provided explanations for why he did not have his
original NIC or documentation establishing that the US authorities had seized
it. The RPD was not entitled to draw negative inferences from its absence.
[19]
The applicant’s position is that the RPD’s
conclusion regarding the birth certificate was unreasonable, because the applicant
gave an explanation for the issuance date of 2012, and because the year it was
issued was immaterial.
[20]
The applicant argues that the RPD also erred in
rejecting the medical report from the clinic where he had the chip removed
simply because he made an error in the name of the town and identified the
bordering town. It was also unreasonable for the RPD to reject the father’s
letter because of information it did not contain instead of focusing on the
information it did contain. The RPD did not properly consider the conclusions
on identity by the Canadian and American authorities, it failed to consider the
totality of the relevant evidence regarding identity, and it made fatal errors
in its findings on credibility and identity which affected the rest of the decision
on the risk the applicant would face in Sri Lanka.
[21]
Finally, the applicant submits that the RPD erred
in assessing the applicant’s residual profile and should have considered the
evidence which demonstrated that someone with the applicant’s profile (a failed
asylum seeker or a person with past work for an NGO) was at risk in Sri Lanka.
IV.
Respondent’s Submissions
[22]
The respondent first submits that the applicant
did not prove his identity, as is required in sections 106 and 100(4) of the
IRPA and Rule 7 of the RPD Rules. The applicant must establish his identity on
a balance of probabilities, and in this case the applicant failed to meet this
onus. The respondent argues that the RPD considered all the evidence and
provided reasons for rejecting it.
[23]
First, the account of how the applicant secured
his passport was not credible. His testimony changed from the first to the
second sitting of the hearing. It was also not credible that the applicant
would not have informed himself of how the passport was obtained before leaving
the country or when he arrived in the US or Canada. The explanation that the
applicant was a young man still largely dependent on his father, especially in
the culture he was raised, is not a valid explanation and no evidence on this was
adduced. Additionally, whatever led the US and Canadian authorities to accept
the applicant’s identity was not binding on the RPD.
[24]
Second, the RPD properly rejected the certified
copy of the applicant’s NIC as not being reliable proof of identity. The applicant
had no evidence that the NIC was with the US authorities, and his testimony was
contradictory on how the copy he provided came to be certified.
[25]
Third, the birth certificate was not
satisfactory proof of identity given that it was issued in 2012 and the
applicant did not provide a satisfactory explanation for this date of issuance.
[26]
The respondent further submits that the RPD’s general
credibility findings are reasonable. Although it is true that the applicant
provided explanations, these were thoroughly considered by the RPD and
rejected. The fact that the applicant provided more evidence at the second
sitting went to the point that the applicant was tailoring his account as the
hearing proceeded. The RPD considered the explanation for the inconsistency
with the US documents, which the RPD acting reasonably did not accept. The RPD
explained why it rejected the father’s letter, because of the absence of
crucial information, and concluded that the applicant was tailoring his account
to the issues raised by the RPD. The RPD reasonably rejected the first medical
report because of the inconsistency in the applicant’s testimony and the
evidence. The RPD did not err in considering the inconsistency in the dates
between the applicant’s testimony and the bishop’s letter and in rejecting the
explanation given by the applicant. Finally, the RPD was entitled to reject the
other two medical reports as unsatisfactory support for the credibility of the
applicant’s allegations.
[27]
The respondent lastly submits that there was no
reviewable error in the assessment and conclusion on the applicant’s profile.
The RPD’s conclusion followed its findings on credibility and identity. The
Panel reasonably concluded that there was no evidence that the applicant would
fall within the applicable risk profiles identified by the United Nations High
Commissioner for Refugees (UNHCR) and that that the mere fact of being a Tamil
male from the north or east of Sri Lanka is not sufficient.
V.
Issues
[28]
The applicant submits that this matter raises the
following issues:
1.
What is the appropriate standard of review?
2.
Did the RPD err in assessing the applicant’s
identity?
3.
Did the RPD err in assessing the applicant’s
credibility?
4.
Did the RPD err in assessing the applicant’s
residual profile?
VI.
Analysis
A.
What is the appropriate standard of review?
[29]
The issues in this case are questions of fact
and mixed law and fact and thus the standard of reasonableness applies (Dunsmuir
v New Brunswick, 2008 SCC 9, at para 50). Questions regarding findings of
identity are reviewable on the standard of reasonableness (Zheng v Canada
(MCI), 2008 FC 877, at para 13; Bagire v Canada (MCI), 2013 FC 816,
at para 18), as are questions of credibility (Aguebor v Canada (Minister of
Employment & Immigration), [1993] FCJ No 732 (Fed CA), at para 4; Lumaj
v Canada (MCI), 2012 FC 763, at para 25) and findings regarding the applicant’s
residual profile (M (J) v Canada (MCI), 2015 FC 598, at paras 63, 67).
B.
Did the RPD err in assessing the applicant’s
identity?
[30]
The Court’s conclusion is that the RPD’s
findings regarding the applicant’s passport are unreasonable. It was
unreasonable for the RPD to draw an adverse credibility inference from the
inconsistency in the applicant’s testimony, given that it is clear from the
transcript of the hearing that the applicant did not know at the time of the
first sitting how his passport had been obtained and explained that his father
had obtained it for him. At this point in the hearing, he was giving
information to the best of his knowledge. The applicant testified that his
father had told him it was a genuine passport obtained through proper channels
and, when then asked by the RPD member whether his father or anyone else had paid
a bribe to obtain the passport, the applicant answered in the negative. At the
second sitting, the applicant clarified that he had since spoken with his
father and that the passport had in fact been obtained through a bribe. This is
not inconsistent with the applicant’s evidence at the first sitting of the
hearing, given that he had clearly indicated he had not known how the passport
was obtained and was relying on what his father had told him.
[31]
The Court also finds to be unreasonable the
RPD’s conclusion that the applicant had not credibly addressed the change in
his evidence on this point between the first and second sittings. The RPD
stated that it was not credible the applicant would not have previously known
that his passport was obtained through a bribe and, given that identity is a
central issue for the applicant to demonstrate, that he would not have taken
steps to inform himself, once safely in Canada, about the circumstances in
which his passport was obtained.
[32]
I agree with the applicant’s characterization of
these statements as implausibility findings. In so finding, the RPD was
speculating about what the applicant should have done or what would have been
the reasonable course of action. Implausibility findings should only be made in
the clearest of cases, where the facts as presented are outside the realm of
what could reasonably be expected or where the documentary evidence
demonstrates that that the events could not have happened in the manner
asserted by the claimant (Valtchev v Canada (MCI), 2001 FCT 776
at para 7). In the present case, there was no evidence that the applicant’s
explanation was not the truth, and such explanation cannot be characterized as
outside the realm of reasonableness. Therefore, with respect, the RPD’s
conclusion on this point was itself unreasonable.
[33]
The other component of the RPD’s decision
related to identity, that I find to be unreasonable, is its finding on the
applicant’s evidence surrounding the certificate from the register of births. This
evidence does not contain inconsistencies of the sort that gave the RPD
concerns in relation to his passport and NIC. It was unreasonable for the RPD
to reject this certificate simply because the date of issue of the copy he
produced was 2012 and his explanation of the reason a copy was required in 2012
was somewhat tentative. I agree with the applicant’s submissions that the fact he
could not recall for certain the reasons why a copy of an official document was
obtained does not mean the RPD can ignore it.
[34]
I appreciate, as noted by the RPD, that the
certificate does not bear a photograph of the claimant as would a passport and
national identity card. However, in combination with my conclusion on the
evidence surrounding the applicant’s passport, I find the RPD’s decision, that
the applicant has not established his identity with credible and trustworthy
evidence, to be an unreasonable finding.
[35]
However, the respondent argues that, even if the
Court were to reach this conclusion on the identity issue, this is not a
sufficient basis to return this matter to the RPD, because identity is not
entangled with the other issues of credibility and risk profile. I will address
this argument below.
C.
Did the RPD err in assessing the applicant’s
credibility?
[36]
The applicant argues that the RPD’s identity
findings coloured its credibility determinations. The respondent’s position is
that the RPD’s findings on credibility are very specific and, independent of
the identity findings, leave no doubt that the RPD did not believe the
applicant’s account for fearing persecution.
[37]
Because of my conclusions below with respect to
the applicant’s risk profile, with the result that the RPD’s decision must be
remitted for re-determination, it is not necessary to decide the credibility
issues argued by the parties.
D.
Did the RPD err in assessing the applicant’s
residual profile?
[38]
The RPD referred in its decision to the specific
risk profile that had been raised by his counsel, that the applicant was at
risk based on his personal experiences at the hands of the Sri Lankan
government but also based on his profile as a young Tamil male from the Eastern
Province, who previously worked for an NGO, and who would become a returning
failed asylum seeker from Canada. The RPD’s conclusion was that, the claimant
not having established his identity with credible and trustworthy evidence,
there was no identity to which any of the risk profiles raised by the relevant
country condition documentation, or a risk profile unique to him, could attach.
The RPD also concluded that, not having established with credible and
trustworthy evidence his account of detentions, torture and computer work for
the military, there was no risk profile that could support a positive
determination.
[39]
Because the RPD’s conclusion on this issue was
at least partially based on its finding that the applicant had not established
his identity, I find that the outcome of the risk profile analysis may have
been different had it not been for the RPD’s error in its treatment of the identity
issue.
[40]
I have considered the arguments and authorities
raised by the respondent to the effect that, without more, the mere fact of
being a male from the north or east of Sri Lanka does not warrant the grant of
refugee protection. For example, in the most recent of those cases, Kulanayagam
v Canada (MCI), 2015 FC 101 at paras 41- 43, Justice Locke referred to such
authorities and held that, as country condition documents are insufficient on
their own to
establish a
personalized risk, it was reasonable for the immigration officer performing the
pre-removal risk assessment in that case to find that, because the applicant
had not established an affiliation with the LTTE, his profile did not bring
him within the group of failed asylum seekers that would attract the attention
of authorities upon their return. As such, the officer had properly assessed
the risk to the applicant as a returning asylum seeker from Canada.
[41]
The challenge for the respondent in this case in
relying on this authority is the express link drawn by the RPD between its
identity finding and its conclusion on risk profile. While the RPD noted that
it had kept in mind the risk profile raised by the applicant’s counsel
(including being a failed asylum seeker form Canada), its conclusion was that
the applicant had not demonstrated identity to which the any of the risk
profiles raised by the UNHCR, or any risk profile unique to the applicant,
could attach. As such, as a result of the RPD’s error in its treatment of the
identity issue, the residual risk profile raised by the applicant has not
received the required assessment, which represents a reviewable error (see Navaratnam
v Canada (MCI), 2015 FC 244 at para 11).
[42]
I also note that this Court has recently held
that the risk profile of a failed refugee claimant returning to Sri Lanka
requires assessment regardless of the assessment of the applicant’s credibility.
In Suntharalingam v Canada (MCI), 2014 FC 987, the RPD found that,
because it did not believe the applicant was targeted by the authorities for a
perceived association with the LTTE, there was no need for it to consider
whether he was at risk in relation to the objective documentary evidence. However,
Justice Brown held as follows at para 49:
In my respectful view, the RPD’s credibility
concerns cannot determine the issue of whether there is a serious possibility
of persecution of the claimant in his capacity as a failed refugee claimant
returnee. The applicant’s status in this regard is determined objectively by
the fact that he is a failed refugee applicant by virtue of having his claim
rejected by the RPD. It has nothing to do with credibility.
[43]
In conclusion, the Court’s decision is that the
RPD’s decision must be set aside and remitted to a different panel of the RPD
for re-determination.
[44]
No question has been submitted to the Court for
consideration for certification for appeal.
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