Docket: IMM-51-14
Citation:
2015 FC 664
Ottawa, Ontario, May 21, 2015
PRESENT: The
Honourable Madam Justice Strickland
|
BETWEEN:
|
|
NAVANEETHAN
NAVARATNAM, KALISTA NAVANEETHAN, THILAKSAN NAVANEETHAN, NITHARSIKA
NAVANEETHAN
|
|
Applicants
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is the judicial review of the decision of
the Refugee Protection Division (RPD) of the Immigration and Refugee Board
dated November 14, 2013, in which it concluded that the Applicants are not
Convention refugees nor persons in need of protection pursuant to ss 96 or 97,
respectively, of the Immigration and Refugee Protection Act, SC 2001, c
27 (IRPA). This application is brought pursuant to s 72 of the IRPA.
Background
[2]
Navaneethan Navaratnam (the Principal Applicant),
his wife Kalista Navaneethan and their two minor children, Thilaksan and
Nitharsika Navaneethan (collectively, the Applicants), are citizens of Sri
Lanka. They claim to have a well-founded fear of persecution at the hands of
the Sri Lankan authorities and paramilitary groups on the grounds of their
race, perceived political opinion, nationality and membership in a particular
social group. The allegations of their claims were set out in the Personal
Information Form narrative (PIF) of the Principal Applicant, which was common
to all of the claims.
[3]
The Applicants’ claim was heard in March 2013 by
an RPD member who became ill prior to rendering a decision. The Applicants
were given the option of a de novo hearing or of having another member (the
Member) decide their claim based on the evidence, the submissions previously
made and a transcript of the proceeding. The latter option was elected.
[4]
The Member concluded that the Principal Applicant’s
evidence, overall, was not credible and, therefore, was insufficient to support
his claim for refugee protection. The Member also found, based on the
documentary evidence, that the Principal Applicant did not fit the profile of a
person who may be at risk in Sri Lanka and require protection or who would be
targeted as a returning asylum seeker. Further, that the Principal Applicant
had failed to establish a nexus to ground membership in a particular social
group. The Principal Applicant feared criminality and, therefore, faced a
generalized risk that was faced by all citizens of Sri Lanka. The Principal
Applicant was, therefore, not a Convention refugee pursuant to s 96, nor could
he avail himself of protection under s 97 of the IRPA. As the other
Applicants’ claims were based on that of the Principal Applicant, the finding
also applied to each of them.
Issues
[5]
The issues in this matter can be framed as
follows:
i.
Did the Member breach the requirements of
procedural fairness and natural justice?
ii.
Was the Member’s decision reasonable?
Standard of Review
[6]
Questions of procedural fairness or natural
justice attract the standard of review of correctness (Juste v Canada
(Citizenship and Immigration), 2008 FC 670 at paras 23-24; Olson v
Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 458
at para 27). On that standard, the Court must ask if the decision under review
was correct. No deference is owed by the reviewing Court, which will undertake
its own analysis of the question and reach its own conclusion (Dunsmuir v
New Brunswick, 2008 SCC 9 at para 50 [Dunsmuir]).
[7]
The assessment of the merits of a claim,
however, is generally a question of fact or of mixed fact and law. It is
therefore reviewable on the standard of reasonableness (Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 52-62 [Khosa]).
More specifically, credibility findings are essentially pure findings of fact
that are reviewable on a reasonableness standard (Zhou v Canada (Minister of
Citizenship and Immigration), 2015 FC 5 at para 13; Zhou v Canada
(Citizenship and Immigration), 2013 FC 619 at para 26; Rodriguez Ramirez
v Canada (Citizenship and Immigration), 2013 FC 261 at para 32; Aguebor
v Canada (Minister of Employment and Immigration), [1993] FCJ No 732 (QL)
(CA)). Similarly, questions of whether a claimant faces a generalized risk of
violence pursuant to s 97 are also reviewed on that standard (De Jesus
Aleman Aguilar v Canada (Citizenship and Immigration), 2013 FC 809 at para
20; Portillo v Canada (Citizenship and Immigration), 2012 FC 678 at para
18 [Portillo]), as is the issue of the well-foundedness of a claimant’s
fear (Gutierrez v Canada (Citizenship and Immigration), 2011 FC 1055 at
paras 25-26; Gabor v Canada (Citizenship and Immigration), 2012 FC 540
at para 33).
[8]
Reasonableness is concerned with the
justification, transparency and intelligibility of the decision-making process
and also with whether the decision falls within a range of possible acceptable
outcomes defensible in respect of the facts and law (Dunsmuir at para
47). On that standard the reviewing Court will interfere with the decision only
if it falls outside that range (Dunsmuir at paras 47-49; Khosa at
paras 45-46, 59).
Preliminary Issue
[9]
The Applicants have not filed their own
affidavits in support of this application and instead rely on the affidavit of Ms.
Bianca Fontenelle, legal assistant to their counsel (the Fontenelle Affidavit).
[10]
In their written representations, the Applicants
stated only that they relied on the cited jurisprudence in support of their use
of third-party affidavits (Sarmis v Canada (Minister of Citizenship and
Immigration), 2004 FC 110 at para 10 [Sarmis]; Rowat v Canada (Information
Commissioner) (2000), 189 FTR 166; Sawridge Band v Canada, [2000]
FCJ No 192; Belgravia Investments Ltd v R, [2000] 4 CTC 8; Pluri Vox
Media v R, 2012 FCA 18), and that if leave should be granted, all
reasonable attempts would be made to file a further affidavit of the Principal
Applicant. I would note, however, despite leave being granted, no further
affidavit has been filed.
[11]
The Respondent submits that Rule 81 of the Federal
Courts Rules, SOR/98-106 (Rules), requires that an affidavit based on
personal knowledge be filed in support of an application for leave. Ms.
Fontenelle does not appear to have explained how she would have personal
knowledge of the alleged events of persecution suffered by the Applicants (Rule
81; Jin c Ministre de l’Emploi et de l’Immigration (6 November 1991), Ottawa 91-A-2424 (FCA) [Jin]),
nor do the Applicants offer any explanation as to why they have not filed such
an affidavit. The Respondent submits that the Fontenelle Affidavit is
inadmissible and, therefore, that the application for leave is improperly
constituted and should be dismissed (Ye v Minister of Citizenship and
Immigration (12 January 2000), Ottawa IMM-4877-99 (FCTD); Morales v Minister
of Citizenship and Immigration (3 September 1998), Ottawa IMM-1582-98
(FCTD)).
[12]
The Federal Courts Immigration and Refugee
Protection Rules, SOR/2002-232 (IRP Rules), which were then in effect, set
out the requirements for perfecting an application for leave, which include
that the applicant’s record shall contain one or more supporting affidavits
verifying the facts relied on by the applicant in support of that application (IRP
Rule 10(2); Dhillon v Canada (Citizenship and Immigration), 2009 FC 614
at paras 8-9). Such affidavits are to be confined to such evidence as the
deponent could give if testifying as a witness before the Court (IRP Rule
12(1)).
[13]
Ms. Fontenelle makes statements concerning the
Applicants’ identity, age, citizenship, the alleged persecution of the
Principal Applicant, the Applicants’ journey to Canada and other matters
without indicating the basis of her personal knowledge of the facts alleged.
The affidavit also appears to contain errors of fact, such as her statement
that Mr. Blanshay, counsel for the Applicants at the hearing before me,
appeared with the Applicants before the RPD and that he advised her that he
made extensive oral submissions at that time. However, counsel who appeared at
the RPD hearing was in fact L. Weppler, who Mr. Blanshay stated at the hearing
before me, had been an associate at his firm.
[14]
That said, leave has already been granted in
this case. Further, the Respondent’s authority, Jin, pertained to a
case in which “[t]he applicant ha[d] failed to file any
affidavit”, even “after having had the defect
brought to his attention”.
[15]
There is also jurisprudence suggesting that an
application for judicial review will not necessarily be dismissed solely
because the applicants have not personally filed affidavits (see Zheng v
Canada (Minister of Citizenship and Immigration), 2002 FCT 1152 at
paras 4-6; Turcinovica v Canada (Minister of Citizenship and Immigration),
2002 FCT 164 at paras 11-13 [Turcinovica]; Sarmis at paras 9-10).
In Sarmis the Court referenced Turcinovica which found that the
impugned affidavit was sufficient to establish the fact of the application and its
rejection. The Court was not, therefore, prepared to dismiss the application
for judicial review on the basis of the use of a third party affidavit.
[16]
Accordingly, this application will not be
dismissed for want of a personal affidavit from the Applicants. However, given
the lack of personal knowledge of its author, the Fontenelle Affidavit serves
only to link the Applicants to the RPD’s file by referencing and attaching
their PIF’s. In any event, at the hearing before me, counsel for the
Applicants stated that the only paragraph the Applicants rely upon in the Fontenelle
Affidavit is paragraph 13, which is discussed further below.
ISSUE 1: Did the Member breach the requirements of
procedural fairness and natural justice?
Applicants’ Position
[17]
The Applicants submit that by letter of August
23, 2013 from the RPD they were notified of the original member’s illness and
were offered a de novo hearing, or, to have the transcript of the
hearing provided to a new member, who would determine the claim in chambers.
They assert that their counsel, Mr. Blanshay, then contacted Mr. John Badowski,
the RPD Coordinating Member, to discuss how the latter option would work.
Specifically, they were concerned about the potential issue of credibility and
how it was to be assessed by the new Member in chambers if issues arose that
had not been raised by the original member and on which the Applicants had not
been specifically and directly confronted and offered an opportunity to
respond.
[18]
The Applicants submit that their counsel
requested that a transcript of the hearing be disclosed to him in advance of
any determination by the Member, as counsel would have made supplemental
written submissions if it revealed any remaining, significant credibility
issues. Further, that Mr. Badowski agreed to this.
[19]
The Applicants submit that their counsel wrote
the RPD on September 6, 2013, consenting to a decision in chambers and
repeating the request that he be provided with the hearing transcript in
advance of any determination by the new Member. However, the transcript was
not disclosed as requested and a significant portion of the reasons is devoted
to the question of credibility. The Applicants assert that it was unfair,
unreasonable and a breach of procedural fairness to proceed in this manner, as
their decision to opt for a decision in chambers was inextricably tied to and
based upon their request to receive the transcript in advance of the rendering
of the decision. This affected the Applicants’ absolute right to a fair
hearing (Costeniuc v Canada (Citizenship and Immigration), 2012 FC 1495;
Mervilus v Canada (Minister of Citizenship and Immigration), 2004 FC
1206; Nemeth v Canada (Minister of Citizenship and Immigration), 2003
FCT 590).
Respondent’s Position
[20]
The Respondent submits that it was open to the
RPD to control its own hearing process. The August 23, 2013 letter offered the
Applicants a choice of procedure. The letter made no mention of any
possibility of the Applicants receiving the transcript or making additional
submissions if they elected a decision in chambers, nor was there any indication
in the reply to that letter that the Applicants wished to make additional
responses. Further, had the original member made the decision, the Applicant
would not have been entitled to the transcript prior to the rendering of the decision.
Therefore, they were similarly not so entitled prior to the decision made in
chambers by the new Member.
[21]
The Applicants were aware of the evidence and
testimony presented at the hearing and had made submissions based on the
evidence. Accordingly, there was no breach of procedural fairness.
Analysis
[22]
The RPD has, in respect of proceedings brought
before it under the IRPA, sole and exclusive jurisdiction to hear and determine
all questions of law and fact, including questions of jurisdiction (s 162(1)).
It is required to deal with all proceedings before it as informally and quickly
as the circumstances and the considerations of fairness and natural justice
permit (s 162(2)). This includes the holding of a hearing at which the
claimant is to be given a reasonable opportunity to present evidence, question
witnesses and make representations (ss 170(b), 170(e)). The RPD’s procedure is
also governed by the Refugee Protection Division Rules, SOR/2012-256
(RPD Rules), pursuant to s 161(1).
[23]
As stated by the Supreme Court of Canada in Prassad
v Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560 at
568-569:
We are dealing here with the powers of an
administrative tribunal in relation to its procedures. As a general rule,
these tribunals are considered to be masters in their own house. In the
absence of specific rules laid down by statute or regulation, they control
their own procedures subject to the proviso that they comply with the rules of
fairness and, where they exercise judicial or quasi-judicial functions, the
rules of natural justice.
[24]
Here the parties identify no RPD Rule or other
process that applies in the event that a member who had conduct of a hearing is
unable to render a decision. It was, therefore, open to the RPD to offer the
Applicants the choice that it did, either a hearing de novo or an in chambers
decision by another member based on the transcription of the evidence led and
presented at the hearing.
[25]
The Applicants assert that the Member breached
the requirements of procedural fairness and natural justice by failing to
provide them with a copy of the transcript prior to rendering the in chambers
decision as they had requested. As a result, they were denied a fair hearing,
as they had no opportunity to speak to the Member’s credibility concerns.
[26]
The actual evidence pertaining to this issue is
quite limited.
[27]
Paragraph 13 of the Fontenelle Affidavit states
simply that:
Mr. Blanchay advises me that he then spoke
with the Coordinating Member John Badowski about the applicants [sic] claim.
He advised that as “credibility” may emerge as an issue in the claim, he wanted
a copy of the transcript identical to the one to be disclosed to any new
Member.
[28]
The August 23, 2013 letter to Mr. Blanshay from
the RPD set out the procedural options described above and requested a response
in writing. In his reply of September 6, 2013, Mr. Blanshay stated that the
Applicants would opt to have the claims assigned to another member in chambers
on the basis of the transcript of the evidence adduced and further stated: “Please ensure that we are provided with a copy of the
transcript as well, in advance of any determination by the Tribunal”.
The Request Record – RPD and RPD Hearing Disposition Record merely note that
this was an in chambers decision by another member.
[29]
Mr. Badowski did not file an affidavit. Thus,
there is no evidence stating that he agreed, or did not agree, to this
request.
[30]
Mr. Blanshay did not seek leave of this Court to
permit him, as counsel, to depose to an affidavit and present argument to the
Court based on that affidavit (Rule 82). And, while in their written
submissions the Applicants state that had the transcript been disclosed to
their counsel in advance of the determination by the new Member “he would have made supplemental written submissions if it
revealed any remaining, significant credibility issues”, this is not
evidence. Similarly, while when appearing before me counsel listed the reasons
why he requested the transcript, this is not evidence.
[31]
Faced with this evidence, or lack thereof, in my
view the question is simply: were the Applicants afforded a fair hearing even
if the transcript was requested but not provided? I believe that they were.
The Applicants had the benefit of a full hearing before a member, at which they
were represented by counsel who made submissions on their behalf orally and in
writing. To the extent that credibility was raised as a concern at that time,
it could have been addressed. The record does not indicate that a request to
make post-hearing submissions on credibility, or any other issues, was made by
counsel who attended the hearing. There is also no evidence that the RPD
agreed, or would have agreed, to new submissions based on the transcript.
Indeed, in the normal course, an applicant would not be entitled to be provided
with, review and respond to the hearing transcript prior to a decision being
rendered.
[32]
Finally, I would note that the Member deciding
the matter in chambers was required to do so only on the basis of the evidence
in the transcript and on the record. To the extent that he exceeded that
limitation, the Applicants could, as they have by way of this judicial review,
assert that his decision was unreasonable.
[33]
Accordingly, in my view, the failure to provide
the transcript prior to the new Member issuing his decision did not result in a
breach of procedural fairness.
ISSUE 2: Was the Member’s decision
reasonable?
(a)
Credibility
Applicants’ Position
[34]
The Applicants submit that the Member devotes
significant attention to numerous credibility issues but states that he will
refrain from making a negative inference, as the Applicants were not confronted
with those issues. However, regardless of that disclaimer, the Member’s
credibility concerns tainted and unfairly affected their claim. Further, the
negative credibility findings comparing the Port of Entry (POE) notes to the
PIF narrative or evidence at the hearing were microscopic in nature. It is
common and reasonable to find a refugee claimant’s PIF and oral testimony to
contain far more detailed information and allegations than the POE notes, yet
the decision does not reflect a consideration of this.
[35]
Further, that the Member did not provide a clear
evidentiary basis to support his flawed finding that the Applicants might have
been granted asylum in the United States (US) but instead chose to come to
Canada and start a new and risky refugee process. This was an unfounded
plausibility determination that amounted to no more than speculation.
Respondent’s Position
[36]
The Respondent submits that the Member felt that
credibility was an issue but was careful to ensure that any credibility
findings were based on obvious inconsistencies and discrepancies in the
evidence and avoided making credibility findings based on concerns not put to
the Applicants. Further, as the Member had concerns about the Applicants’
credibility, it was not unreasonable for him to require corroboration. The
Member’s finding on subjective fear was therefore also reasonable, and it was
open to him to find a lack of credibility due to inconsistencies in the Applicants’
POE, PIF and oral testimony. The points of credibility highlighted by the
Member were relevant and obvious.
Analysis
[37]
The Member’s credibility analysis is flawed and
often unintelligible.
[38]
The Member commenced his analysis by stating
that:
- there was an inconsistency as to the amount of money demanded
by the men who allegedly came to the Principal Applicant’s home in Sri
Lanka. In the POE notes, he indicated a demand for 10 lakh rupees
initially, then 20 lakh rupees later. However, in his PIF narrative he
only indicates that 10 lakh rupees were demanded;
- in his PIF the Principal Applicant said he was slapped across
the face, whereas at the hearing he stated he was punched;
- the alleged events in Sri Lanka were undocumented, no police
reports were filed and no medical attention was sought, so there were no
records of these events. The Applicants’ voyage to Canada was also undocumented,
and there was no documentary evidence that the Principal Applicant was
even in Sri Lanka at the relevant times;
- if the alleged gunmen were as dangerous as alleged, they would
have found the Applicants, who were hiding at a relative’s house 1.5 km
away. This went to well-foundedness of alleged fear/plausibility;
- the Applicants’ claim was based on a fear of extortion, the duration
of that problem being not more than two months. The two visits and one
phone call were not documented. “Thus, the Panel
would have expected the evidence to be at least internally consistent. However,
as indicated above, it was not”.
[39]
Having said all of that, the Member then stated
that the original member had not questioned the Applicants on these matters so
that they could explain the concerns. While acknowledging that the in chambers
review which he was conducting precluded the raising of those concerns, the
Member stated “However, that does not mean that the
credibility issues noted above should be totally ignored, and the claimant’s
allegations be deemed to be totally truthful in all aspects”. It is
unclear to me what the Member may have meant by this last statement.
[40]
The Member next stated:
[14] To deal with this evidentiary
challenge, the Panel will not make negative inferences as to credibility from
all the above points noted. However, they were noted, thus it can be said that
the claim might have been stronger if all the above concerns could have been
addressed satisfactorily. There were, though, several factual issues, evidence
on the face of the record. The first is the slapped / punched issue. The claimant,
using an interpreter, prepared the PIF indicating he was slapped. He indicated
at the beginning of the hearing, and when he signed the PIF, that the PIF was
true and correct. However, at the hearing, he said, several times, that he was
punched. These clearly are two different things. It is possible, however, that
the interpretation at the hearing could have led to this confusion. The Panel
notes, however, that this is only a possibility, and it is likely that he
actually said he was punched. Considering all the above, though, the Panel will
refrain from making a negative inference as to credibility from this.
[41]
Thus, while in paragraph 14 of his decision the
Member stated that he would not make negative credibility inferences on all of
the concerns he listed, he then returned to the punched/slapped issue and again
stated that he would refrain from making a negative credibility inference on
that point.
[42]
The Member next returned to the amount of the
extortion demand, noting that the second and larger amount identified in the
POE was omitted from the PIF and was not mentioned at the hearing. He found
that this was a significant omission, since it allegedly tripled the amount
demanded. The Member made a negative inference as to credibility. I would
note that while the Member states that it is difficult to even imagine what
possible explanation could be given for the omission, the Principal Applicant
did not have the issue put to him at the hearing and, therefore, did not have
the opportunity to provide any explanation, whether it was one that the Member
could have imagined or otherwise. In fact, the Member made the negative
inference even though he had previously noted that the Applicants had not been
questioned on these matters.
[43]
The Member also stated that the Principal
Applicant told the US authorities that the gunmen came to his house in February
2011 but, elsewhere in his evidence, said that they came in January and
February 2011. The Member again found it difficult to imagine any explanation
for the inconsistency and made a negative inference as to credibility. However,
the transcript shows that the original member did not have the US documents
before her (CTR p 344) at the hearing. Accordingly, she could not have and did
not put the inconsistency identified by the Member to the Principal Applicant
at that time.
[44]
The Member concludes that “[c]onsidering all the above, the Panel finds the claimant’s
evidence, overall, to be not credible, and thus insufficient to support his
claim for refugee protection”.
[45]
I acknowledge that it is well established that,
in its role as trier of fact, the RPD’s credibility findings should be afforded
significant deference (Lin v Canada (Citizenship and Immigration), 2008
FC 1052 at para 13). However, in this case the Member determined the
Applicants’ evidence overall not to be credible when, in fact, this finding was
based on only two issues of credibility. The Member also acknowledged that
these two issues were not raised by the original member and were not put to the
Applicants for response. Yet, having identified this as a reason for not
making negative credibility findings, he did so. Further, while the transcript
indicates that the original member confirmed that credibility is always an
issue at such hearings, she did not pursue this as an area of focus and did not
take issue with counsel’s submissions to the effect that credibility was not a
concern (see Ismailzada v Canada (Citizenship and Immigration), 2013 FC
67 at paras 20-21; Ahmed v Canada (Citizenship and Immigration), 2013 FC
205 at paras 24-31). In my view, as the Applicants were not given to
understand at the hearing that these credibility concerns were at issue, and
because the opportunity for them to address those issues, had they been of
concern, had passed, it was unreasonable for the Member to subsequently make
these negative credibility findings in chambers.
[46]
This approach is again demonstrated in the
following paragraph of the decision. There the Member states that because the US
had determined that there was serious possibility that the Principal Applicant could
be granted asylum, but he left the US for Canada to be with his family, it was
evident that he did not have a subjective fear of returning to Sri Lanka. Yet,
having said that, the Member then states he would have made a negative
inference as to credibility on this point, except that the original member
indicated that this was not an issue, so counsel did not have an opportunity to
make submissions on the issue.
[47]
In my view, in these circumstances, the process
and the outcome do not fit comfortably within the principles of justification,
transparency and intelligibility (Khosa at para 59) and the Member’s
credibility finding was therefore not reasonable.
(b)
Sections 96 and 97
[48]
The Member stated that he had reviewed the
documents in Exhibit R/A-1 and that a great deal of information is available on
human rights in Sri Lanka. He found that the documentation was clear that the government
of Sri Lanka currently persecutes those individuals that they suspect of being
associated with the Liberation Tigers of Tamil Eelam (LTTE), and those who oppose
the government. However, that the Applicants did not allege that the Principal
Applicant was such a person. Rather, he indicated that he was targeted because
he had family in Canada and was, therefore, perceived to be wealthy. The
Member referenced the hearing transcript in that regard.
[49]
The Member also found that returning failed
refugee claimants may be subject to persecution if they are associated with the
LTTE or are opponents or critics of the government. As the Applicants did not
fall into this category, they, like all returnees, would be subject to criminal
checks, which could entail detention of several days. However, that
administrative detention, if it were to occur, would not be persecution
(Exhibit R/A-1). Nor did the Applicants fall into the profile of persons at
risk as identified by the July 5, 2010, United Nations High Commissioner for
Refugees (UNHCR) Guidelines.
[50]
The Member concluded that the Principal Applicant
did not require Canada’s protection because he is a Tamil from the north of Sri
Lanka or because he would be returning as a failed refugee claimant.
[51]
The Applicants submit that the Principal Applicant’s
claim was based on race, nationality, membership in a particular social group
as set out in his PIF, not just on his being a Tamil male from the north.
Further, that the Member’s country condition analysis was curt and relied on
outdated UNHCR eligibility guidelines. And, that the referenced National
Documentation Package Response to Information Request LKA103,815.E (RIR),
contains contradictory evidence that the Member failed to address without
explanation (Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No 1425).
[52]
A review of the transcript makes it clear that
the Principal Applicant at the hearing described extortion by unidentified
masked gunmen as the basis for his fear. When asked who they were, the
Principal Applicant responded that he did not know. The Principal Applicant
suggested that he may have been threatened because the Applicants have
relatives in Canada and that his assailants had asked him why he could not get
money from his brother in Canada. He made no reference to the allegation of being
at risk on any other basis. He referenced abductions and murders as reported
by the news, but he did not know who was responsible for those crimes and he
made no connection of those events to his claim.
[53]
The Member found that the Principal Applicant had
not established that he was a member of a particular social group for the purposes
of s 96. In my view, absent any further evidence establishing that in Sri
Lanka people with perceived wealth comprise a particular social group who are
at risk, the Member’s conclusion was reasonable. The Court has consistently
held that perceived wealth does not, without more, constitute membership in a
particular social group (Étienne v Canada (Citizenship and Immigration),
2007 FC 64 at paras 15-17; Cius v Canada (Citizenship and Immigration),
2008 FC 1 at paras 17-20 [Cius]. The Applicants merely speculated that
they were targeted for criminality because of the belief that they, having
relatives in Canada, had access to money. They do not allege, still less
establish, that their putative risks stem from anything more than a perception
of wealth, which is insufficient to qualify them as members of a particular
social group. Accordingly, the Member reasonably found that the Applicants did
not establish a well-founded fear of persecution on the basis of membership to
a particular social group.
[54]
Because the Member also found that the Principal
Applicant’s fear was of criminality, he also assessed the claims under s 97 of
the IRPA. The Member found that all people in Sri Lanka face a generalized
risk of crime, including the Principal Applicant who claimed that he was
targeted because he has relatives in Canada:
… However, the Panel finds, all citizens of
SL are subject to crime. Therefore, the panel finds that the claimant alleges
that he is a victim of generalized risk of generalized crime. He claims to have
been targeted because he has relatives in Canada and thus perceived [sic]
to have money. Therefore, the panel finds, the risk allegedly feared by the
claimant is a generalized risk faced by all citizens of SL.
[55]
The Member’s concluding paragraph references
case law he states stands for the proposition that the fact that a person or
group may be victimized repeatedly or more frequently by criminals, for
example, because of their perceived wealth or otherwise does not remove the
risk from the exception if it is one faced generally by others. He found that
this was a situation of generalized risk.
[56]
In my view, the Member appropriately determined
the nature of the risk faced by the Principal Applicant, being a victim of
crime. Nothing in the evidence suggested that the risk of extortion faced by
him exceeded the same risk as faced by others in Sri Lanka. In other words,
there was no evidence that the risk was personalized (Portillo at para
40). Case law establishes that a risk of harm resulting from “the fallout of criminal activity, and not the targeting of a
particular group in a discriminatory fashion”, is not personalized but
generalized (Cius at paras 18-19; see also Kuruparan v Canada
(Citizenship and Immigration), 2012 FC 745 at para 133; Prophète v
Canada (Citizenship and Immigration), 2008 FC 331 at paras 18-23).
[57]
The Applicants also submit that the Member
failed to address contradictory information contained in the RIR and
unreasonably relied upon it to find that administrative detention upon return
does not amount to persecution. Specifically, that the RIR included a source
that stated the Sri Lankan authorities are of the view that any Tamil who fled
in an unauthorized way must be an LTTE sympathizer.
[58]
The Member is presumed to have considered all of
the evidence before him (Flores v Canada (Minister of Employment and
Immigration), [1993] FCJ No 598 (FCA)). In this case, he referred to both
the RIR and the UNHCR Guidelines. He stated that he had reviewed all of the
documentary evidence which he had summarized in concluding that the Applicants
do not need Canada’s protection because the Principal Applicant is a Tamil from
the north of Sri Lanka or because they would be returning failed refugee
claimants. It is true that the Member did not reference every source cited in
the RIR. However, in whole that document supports his finding that it is
persons suspected of LTTE connections that are at risk of persecution. The
Principal Applicant, based on the evidence, was not such a person nor did he
fit the profile of others who may be at risk, such as journalists or other
professionals. In these circumstances, the failure to discuss this specific source
is not a reviewable error.
[59]
In conclusion, while the Member’s credibility
analysis was unreasonable, this did not taint his analysis of the s 96 and s 97
claims.
[60]
Based on the documentary evidence and the
transcript of the hearing, the Member reasonably found that the Principal Applicant
is not a Convention refugee pursuant to s 96 of the IRPA or a person in need of
protection within the meaning of s 97 of the IRPA. Accordingly, this
application for judicial review is dismissed. Neither party submitted a
question to be considered for certification.
Email this Content