Docket: IMM-2582-14
Citation:
2015 FC 529
Ottawa, Ontario, April 24, 2014
PRESENT: The
Honourable Mr. Justice Fothergill
|
BETWEEN:
|
|
SAHEED ABDUL
RAZAK
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
Saheed Abdul Razak (the Applicant) has brought
an application for judicial review under s 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the IRPA) of a decision of the
Refugee Appeal Division (RAD) of the Immigration and Refugee Board. The RAD
dismissed the Applicant’s appeal of a decision of the Refugee Protection
Division (RPD) that he is neither a Convention refugee within the meaning of s
96 of the IRPA, nor a person in need of protection as defined in s 97(1) of the
IRPA.
[2]
For the following reasons, the application for
judicial review is allowed and the matter is remitted to the RAD for
re-determination by a differently constituted panel.
II.
Background
[3]
The Applicant is a citizen of Sri Lanka. He was born in the eastern province of Sri Lanka, and is a Tamil-speaking Muslim. His claim
for refugee protection was based on the following contentions.
[4]
In September 2009, the Applicant was accused by the
Sri Lankan police of transporting members of the Liberation Tigers of Tamil
Eelam (the LTTE or Tamil Tigers) to India by boat, and was detained over a
period of eight months until May 2010. Following his release, the Applicant
remained in hiding until he was able to flee the country in October 2010,
whereupon he made his way to Canada in March 2013 via several other countries (Ecuador, Peru, Colombia, Panama, Guatemala, Mexico and the United States of America). This journey
took him well over two years to complete. In April 2013, the Applicant made a
refugee claim, asserting that he will be arrested, tortured or killed by the
Sri Lankan police or by Karuna, a pro-Tamil paramilitary group, if he is repatriated
to Sri Lanka.
[5]
In a decision dated October 28, 2013, the RPD
determined that the Applicant was not a credible witness. It also drew a negative
inference regarding the Applicant’s subjective fear of persecution based on his
failure to claim refugee status in any of the countries through which he travelled
before arriving in Canada. The RPD also found major inconsistencies and contradictions
in his testimony in relation to facts that were central to his claim. The RPD
concluded that the Applicant had failed to establish on a balance of
probabilities that he would face persecution if he returned to Sri Lanka.
[6]
The Applicant appealed the RPD’s decision to the
RAD, requesting that the RAD set aside the decision of the RPD and substitute
its own determination or, in the alternative, that the RAD return the matter to
a differently-constituted panel of the RDP for re-determination. The Applicant
raised two issues before the RAD: first, that the RPD failed to consider the
risk he will face as a failed refugee claimant should he be returned to Sri Lanka; and second, that the RPD’s credibility findings with respect to his failure to
claim asylum elsewhere were unreasonable. Otherwise, the Applicant did not contest
the RPD’s adverse credibility findings based on the inconsistencies and
contradictions in his testimony.
[7]
The Applicant also sought to admit three
documents regarding his psychological condition. These were submitted after the
application record was filed. The Applicant argued that the documents would provide
some explanation for his confused testimony at the RPD hearing. The first
document was a medical report from Scarborough Hospital Mental Health Services
dated December 2, 2013 which confirmed that the Applicant had attended the
emergency ward complaining of insomnia and recurrent traumatic thoughts. The
second document was a medical report from Markham Stouffville Hospital dated December 20, 2013 which indicated that the Applicant was admitted to hospital on
December 16, 2013 and was released with a differential diagnosis of post-traumatic
stress disorder and insomnia. The third document was a pamphlet produced by the
Canadian Medical Health Association regarding post-traumatic stress disorder.
III.
The RAD’s Decision
[8]
In a decision dated March 12, 2014, the RAD
dismissed the appeal and concluded that the RPD’s findings regarding the
Applicant’s credibility were reasonable. It also determined that, based on a
balance of probabilities, the Applicant would not be at risk as a failed refugee
claimant if he returned to Sri Lanka.
[9]
The RAD applied the correctness standard of
review with respect to the RPD’s consideration of whether the Applicant would
be at risk as a failed refugee claimant, and the reasonableness standard of
review to the question of whether the RPD was wrong to draw an adverse
inference from the Applicant’s failure to claim refugee status elsewhere. The
RAD characterized the first issue as a question of law and the second as a
question of fact.
[10]
The RAD noted that the Applicant did not contest
the RPD’s adverse findings of credibility arising from inconsistencies and
contradictions between his oral testimony and the written evidence. The sole issue
of credibility that was raised before the RAD was in relation to the Applicant’s
failure to seek asylum in any of the countries that he travelled through en
route to Canada. The RAD noted that the Applicant offered little to challenge
the RPD’s finding in this regard. The RAD found that it was “[p]articularly troubling” that the applicant “spent several months, and, in at least one case, over a
year in these countries all of which have ratified both the 1951 Convention and
the 1967 Protocol” (at para 35). The RAD was not persuaded by the Applicant’s
explanation that he had not claimed asylum in any of these other countries
because he was assured by his smuggler that he would not be caught and he therefore
had no fear of being returned to Sri Lanka. The RAD noted that the Applicant
acknowledged in testimony that he had been arrested and incarcerated in at
least four of these countries, including the USA. The RAD found that it was
reasonable for the RPD to conclude that the Applicant had failed to provide a
reasonable explanation for his failure to seek protection in these other
countries.
[11]
Nevertheless, the RAD found the absence of a sur
place analysis in the RPD’s decision to be “highly
problematic”. A sur place refugee is a person who was not a refugee when he left his country, but who
becomes a refugee at a later date due to a change in circumstances in
the country of origin or as a result of the person’s own actions. The RAD noted
that it was unclear whether the RPD had considered the Applicant’s submissions
on this point.
[12]
The RAD then proceeded to conduct its own review
of the documentary evidence and an analysis of the risk faced by the Applicant as
a failed refugee claimant. It concluded, based on the documentary evidence, that
persons who are known to Sri Lankan authorities (e.g., as a result of
outstanding criminal charges or suspected terrorist links) face a clear risk of
persecution, cruel and unusual treatment or punishment, or a danger of torture.
It noted and upheld the RPD’s finding that the Applicant lacked credibility
with respect to his allegations of past accusations by Sri Lankan authorities of
links to the Tamil Tigers, or that he left the country illegally.
[13]
Acknowledging that the documentary evidence
regarding Sri Lanka “is somewhat equivocal about who is
at risk and why”, the RAD stated its preference for a document prepared
by the United Nations High Commissioner for Refugees (UNHCR) dated July 5, 2010
titled Eligibility Guidelines for Assessing the International Protection Needs
of Asylum Seekers from Sri Lanka. The RAD observed that the UNHCR is an internationally-recognized
body created by the United Nations to promote the protection of international
human rights. The UNHCR’s conclusions were supported by reports from Denmark and the UK. The UNHCR document listed several profiles of people who may still be at risk if
they return to Sri Lanka, including persons suspected of having links to the LTTE,
journalists, civil society and human rights activists, and opposition politicians
and activists. The document noted that failed refugee claimants who do not fall
within any of the listed profiles are not at particular risk, given the
improved human rights and security situation in Sri Lanka. The RAD then
concluded that the Applicant did not fall within any of the risk profiles
[14]
The RAD permitted the Applicant to file a report
prepared by the International Crisis Group titled Sri Lanka’s Potemkin
Peace: Democracy Under Fire, which was included in his application record.
[15]
The RAD refused to grant the Applicant an
extension of time in which to submit his additional medical documents under
Rule 29 of the RAD Rules on the ground that he had failed to meet the test in Rule
29(4) for submitting documents outside the prescribed time period. With respect
to the first document, the RAD found that the Applicant had not provided an
explanation for why he could not, with reasonable effort, have included this
document in the record tendered on December 16, 2013. Nor had the Applicant’s
counsel provided any explanation for why the report was not available until
January 23, 2014, or the efforts made to obtain the medical report in a more
timely fashion. The RAD found that the two medical reports did not raise a new
issue and had limited probative value, as confirmation of hospital visits would
not help to explain the problems the Applicant experienced in testifying before
the RPD. Moreover, these preliminary reports did not provide any detail regarding
the Applicant’s psychological condition or how this might have affected his
cognitive functioning. The RAD went on to find that the Applicant had failed to
specify a finding of the RPD that might be rendered unreasonable as a result of
these documents.
IV.
Issues
[16]
The Applicant raised several issues in support of
his application for judicial review. Only one of these is clearly
determinative: whether the RAD’s application of the reasonableness standard to
its review of the RPD’s credibility findings was correct in law.
V.
Analysis
[17]
In Ngandu v Canada (Minister of Citizenship
and Immigration), 2015 FC 423, I reviewed this Court’s jurisprudence
regarding the standard of review to be applied by the RAD in its consideration
of credibility findings made by the RPD. I concluded that the RAD commits an
error when it reviews the RPD’s credibility findings against the standard of
reasonableness and fails to conduct its own assessment of the evidence. I apply
the same reasoning here.
[18]
In this case, the RAD conducted a very brief
analysis of the Applicant’s credibility (at paras 35 and 36 of the decision). I
agree with the Applicant that the RAD did not undertake an independent
assessment. It is apparent throughout its decision that the RAD relied heavily on
the RPD’s findings, consistently using the language of “reasonableness”.
[19]
The RAD concluded that it was “[p]articularly troubling” that the Applicant had spent
several months in different countries, in one case more than a year, without making
a claim for asylum. While this may initially appear to be an independent
assessment of the evidence, the RAD’s statement at para 35 is revealing: “the Appellant provided little in the way of argument to
contest the RPD’s finding in this regard”. This indicates that the RAD
assumed the RPD’s findings to be correct, and placed the onus on the Applicant
to rebut this assumption. It is clear that the RAD did not make its own
assessment of the evidence, and its decision was therefore incorrect in law.
VI.
Conclusion
[20]
The application for judicial review is allowed
and the matter is remitted to the RAD for re-determination by a differently
constituted panel. No question is certified for appeal.
Email this Content