Docket: IMM-6498-14
Citation:
2015 FC 999
Ottawa, Ontario, September 11, 2015
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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K.S.
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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 JUDGMENT AND REASONS
(Identical to
Confidential Judgment and Reasons issued August 21, 2015,
as the Applicant
requested no redactions)
[1]
This is an application under section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] for judicial review of the
decision of a member of the Refugee Protection Division [RPD] of the
Immigration and Refugee Board of Canada that the Applicant was neither a
Convention refugee nor a person in need of protection within the meaning of
sections 96 or 97 of IRPA. The Applicant is a young, male Tamil citizen of Sri
Lanka who arrived in Canada on August 13, 2010, with a group of Tamil migrants
aboard the vessel MV Sun Sea. He claimed refugee protection on the basis
that he feared he would face persecution, torture and cruel and unusual
punishment from the Sri Lankan government and paramilitary groups if he
returned to Sri Lanka. He submits that the RPD erred in its determination that
he would not face such a risk.
[2]
For the reasons below related to the Applicant’s
sur place claim, the application for judicial review is allowed.
I.
Background
[3]
This proceeding is subject to a Confidentiality
Order dated October 16, 2014, applicable to any information that could serve to
disclose the identity of the Applicant or any of his family or associates,
including their names, ages, or places of birth. At the hearing of this
application, I requested counsel’s submissions on the extension of the
Confidentiality Order to the hearing and my resulting decision. In written
submissions following the hearing, the Applicant requested that the
Confidentiality Order be so extended relying on the arguments originally made
in support of the motion for the Confidentiality Order, and the Respondent took
no position on this issue.
[4]
I consider it appropriate to extend the
Confidentiality Order as requested by the Applicant. I believe that these
Reasons refer only to background facts that are necessary for purposes of the
analysis herein related to the Applicant’s sur place claim and will not
disclose information of the sort that is the subject of the Confidentiality
Order. However, out of an abundance of caution, I am releasing this
Confidential Judgment and Reasons and will afford the Applicant two weeks to
propose any redactions to the Public Judgment and Reasons that will follow and
the Respondent one week to provide any comments on any proposed redactions.
[5]
The Applicant was born in the Northern Province
of Sri Lanka. He recounted in his Personal Information Form [PIF] that, during
his childhood, he and his family were displaced many times due to the conflict
between the government of Sri Lanka and the Liberation Tigers of Tamil Eelam [LTTE].
Like many others, the LTTE attempted to recruit him during his youth. They
detained him when he refused but subsequently released him.
[6]
While he was a student, the Applicant sustained
an injury to his leg that required surgery and resulted in significant residual
scarring.
[7]
The Applicant stated in his PIF that his brother
had repeatedly been captured, escaped and been recaptured by the LTTE.
[8]
In 2010 the Applicant left Sri Lanka, travelled
to Thailand and boarded the MV Sun Sea, which arrived in Canada on
August 13, 2010. The Applicant made a claim for refugee protection in Canada
after his arrival.
II.
RPD Decision
[9]
In a decision dated August 11, 2014, the RPD
dismissed the Applicant’s claim for refugee protection [the Decision].
[10]
The RPD determined that the Applicant was
neither a Convention refugee nor a person in need of protection, focusing on
the Applicant’s overall credibility, the Applicant’s risk profile and the issue
of whether the Applicant was a refugee sur place because of his travel
on the MV Sun Sea.
[11]
First, the RPD reviewed the Applicant’s
narrative as presented in his original and amended PIFs and found the Applicant
had not been a credible witness throughout the hearing. The RPD drew negative
inferences in regards to several areas of the Applicant’s testimony, including
inconsistencies surrounding the times the Applicant’s brother was in the
custody of the LTTE.
[12]
Next, the RPD addressed the Applicant’s risk
profile, noting the conclusion by the United Nations High Commissioner for
Refugees [UNHCR] in its Eligibility Guidelines for Assessing the International
Protection Needs of Asylum Seekers from Sri Lanka [UNHCR Guidelines] that,
given the cessation of hostilities, Tamils from the North are no longer
presumptively eligible for refugee protection and that all asylum-seekers
should be considered on their individual merits.
[13]
The RPD concluded that the Applicant was not at
risk based on the risk profiles identified in the UNHCR Guidelines. While it
found the evidence, in particular as to the dates, relating to the Applicant’s
brother’s capture and work for the LTTE was not credible, the RPD did note that
the documentation indicated that the Applicant’s brother had been detained by
Sri Lankan authorities and subsequently released from a rehabilitation center
after the war. However, the RPD considered that, in spite of the familial
connection with the LTTE, there was no probative evidence that the Applicant
was wanted by Sri Lankan authorities. He was able to travel through checkpoints
and depart Sri Lanka, and it was reasonable to expect that if the authorities
perceived him to be an LTTE supporter, they would have treated him differently.
It was reasonable to expect the Applicant would not have been able to pass
through security checkpoints, issued a passport and allowed to leave if the
authorities believed he was a person described in the risk profiles.
[14]
Before issuance of the RPD’s decision, further
disclosure was made concerning the status of two Sri Lankans who arrived in
Canada aboard the MV Sun Sea and were subsequently returned to Sri
Lanka. Both the Applicant and the Respondent made submissions regarding this
evidence. Despite the evidence concerning the treatment of these two other
individuals by Sri Lankan authorities, the RPD found it did not have the
information to indicate why they were treated that way and was unable to
determine whether the Applicant was similarly situated.
[15]
The RPD concluded that there was no objective
basis for the Applicant’s subjective fear.
[16]
Next, the RPD considered whether being a failed
asylum claimant would put the Applicant at risk if he returned to Sri Lanka.
The RPD observed that the international delegation, including Canada Border
Services Agency [CBSA] and authorities from other countries, which participated
in a fact-finding trip to Sri Lanka in 2011, noted that a “key theme” with interviewees was that they “said they no longer had fears for their personal safety”.
The RPD found this report trustworthy, reliable and relevant. Moreover, the RPD
noted that, after the signing of an Assisted Voluntary Returns Agreement with
the International Organization for Migration to facilitate the return of Sri
Lankans from Africa, Canadian officials reported that sixty-six returnees were
interviewed at the airport and released without difficulty.
[17]
Other sources confirmed that Tamils are
subjected to the same screening process for all persons, regardless of whether
they are returning voluntarily or as failed refugee claimants. While there have
been cases of detention upon arrival, these involved outstanding criminal
charges and were not related to asylum claims or ethnicity. Although some
reports found that Tamils who have an actual or perceived link to the LTTE are
at heightened risk of detention and torture, there is insufficient evidence to
conclude the Applicant had any ties to the LTTE or a history of having opposed
the government.
[18]
Again noting the post-hearing disclosure
concerning the two individuals returned to Sri Lanka, the RPD found that the
additional data provided by the Respondent negated the Applicant’s submissions
and concluded that the Applicant was not similarly-situated, observing that one
of the cases involved previous criminality.
[19]
The conclusion of the RPD was that there was
insufficient evidence that the Applicant would be detained after screening if
returned to Sri Lanka. As he was not perceived by the Sri Lankan government to
be linked to the LTTE, he did not have grounds to fear persecution as a failed
asylum seeker if he were to return.
[20]
The RPD then considered whether, as a passenger
on the MV Sun Sea, the Applicant would be suspected of involvement in
the LTTE and was therefore a refugee sur place. It found there was
insufficient evidence that the government of Sri Lanka suspects individuals to
have links to the LTTE by virtue of being smuggled to Canada aboard the MV
Sun Sea. There was insufficient credible evidence to suggest that the Sri
Lankan government has any reason to believe the Applicant is a member or
supporter of the LTTE, other than his presence on the MV Sun Sea.
[21]
The RPD’s analysis was that, although the
arrival of the MV Sun Sea was of significant interest to authorities in both
Sri Lanka and Canada, it was logical to conclude that Canadian officials have
deemed the Applicant to have no affiliation to the LTTE. Likewise, while Sri
Lankan officials may know or suspect the Applicant was aboard the MV Sun Sea,
they would also have logically concluded that Canadian officials concluded he
did not have LTTE ties. Otherwise it is unlikely he would have been released.
The Applicant could produce documentation from his refugee proceedings to show
he has been found not to have any affiliation with the LTTE. Thus, the RPD
concluded that, on a balance of probabilities, the Sri Lankan government would
not perceive the Applicant to be a member or supporter of the LTTE simply on
the basis of his travel on the MV Sun Sea, given his history in Sri
Lanka before coming to Canada.
[22]
The RPD also considered the Applicant’s claim
under s. 97 of IRPA and, for the same reasons underlying its analysis under s.
96, found the Applicant would not face a risk to his life, a risk of cruel and
unusual treatment or punishment, or a danger of torture if returned to Sri
Lanka.
III.
Issues
[23]
In my view, the issues raised in this matter can
be stated as follows:
A.
What is the applicable standard of review?
B.
Did the RPD make reviewable errors, rendering
its decision unreasonable?
IV.
Submissions of the Parties
[24]
Because my decision turns on the RPD’s analysis
of the Applicant’s sur place claim, and it is accordingly unnecessary
for me to consider the other grounds of review raised by the Applicant, the
following summary of the parties’ submissions relates only to those submissions
directly or indirectly relevant to that analysis.
A.
Applicant’s Submissions
[25]
The Applicant argues that the RPD erred in
dismissing the sur place claim, which was based on the fact that the
Applicant was a passenger on the MV Sun Sea, would be returning from a
perceived centre of LTTE fundraising, had been detained and interrogated by
CBSA regarding LTTE links, and would be returning on a temporary travel
document. The RPD erred in failing to consider any of these factors, and
instead determined the claim based on the Applicant’s profile at the time he
left Sri Lanka (Khan v Canada (Minister of Citizenship and Immigration),
2001 FCT 836 at para 22). In a recent decision involving a Tamil male who came
to Canada aboard the MV Sun Sea, this Court found that the Board erred
in looking only at whether the applicant “had already
been linked to the LTTE based on travelling on the Sun Sea, as opposed
to whether he would be linked with the LTTE upon return” (B407 v
Canada (Minister of Citizenship and Immigration), 2013 FC 1085, at para 39
[B407]).
[26]
The Applicant also relies on the decision of
Justice Russell in YS v Canada (Minister of Citizenship and Immigration),
2014 FC 324, holding at paragraphs 65-69 that the fact an Applicant has been
cleared of any suspicion of LTTE connections in the past does not deal with the
sur place claim, although it has some relevance to that claim, and that
the RPD was obliged to consider a forward-looking sur place claim based
upon a perceived LTTE connection as a result of his arriving in Canada on the MV
Sun Sea. Similarly, Justice Strickland found in B381 v Canada (Minister
of Citizenship and Immigration), 2014 FC 608, at paragraph 51 [B381],
that it is not the Applicant’s past that would lead to suspicion of links to
the LTTE but his travel on the MV Sun Sea, this being the very nature of
the sur place claim. The Applicant argues that the RPD made the same
error in relying solely on its findings regarding the Applicant’s past, without
considering whether the connection with the ship would put the Applicant at
risk.
[27]
According to the Applicant, the RPD also ignored
or dismissed critical evidence supporting the sur place claim. The RPD
failed to refer to two reports cited by the Applicant: a report from Amnesty
International dated June 12, 2012 regarding the risks to passengers on the MV
Sun Sea and MV Ocean Lady, concluding that the passengers faced a
risk of persecution due to their perceived links to the LTTE; and a report by
Freedom from Torture dated September 13, 2012 called “Sri Lankan Tamils
tortured on return from the UK” (B381, at paras 44-53, 56-57).
[28]
Further, the Applicant argues that the RPD
discounted evidence regarding the two individuals returned to Sri Lanka
(identified as B005 and B016) and made unclear and inconsistent findings. The
finding that there was insufficient information regarding the “two Sri Lankan individuals” to indicate why these
claimants were treated as they were by Sri Lankan authorities and make a decision
that the Applicant was in similar circumstances is unintelligible, as the RPD
later stated, with reference to post-hearing disclosure, that it preferred the
Minister’s position on the documents. The Applicant argues it is not clear that
the RPD was aware that the post-hearing disclosure referred to the same two
individuals and only to a narrow point as to whether one of these individuals
was still detained.
[29]
The Applicant submits that the evidence
indicated that the two MV Sun Sea returnees had been mistreated on
arrival in Sri Lanka, despite the fact that one of them was specifically
exonerated of LTTE involvement before his departure. It demonstrates that B016
was detained and tortured on arrival, was questioned regarding the names of
everyone who was on the ship, and under torture gave all the names of
passengers and crew he was aware of, saying they were linked to the LTTE. This
confirms the Sri Lankan government was highly interested in the passengers on
these boats. Whether or not B016 is similarly situated to the Applicant, this
evidence was highly relevant and could not be dismissed by the RPD as it was.
The RPD’s failure to consider this evidence and assess it in intelligible,
justifiable and transparent terms renders the sur place analysis
unreasonable.
[30]
Finally, the Applicant argues that the RPD erred
in failing to consider important elements of risk advanced by the Applicant (Zoja
v Canada (Minister of Citizenship and Immigration), 2011 FC 1079, at paras
18-20; Thiyagarajah v Canada (Minister of Citizenship and Immigration),
2010 FC 1015 at paras 15-16). The submission is that the RPD did not consider
the additional risk factors advanced by the Applicant, including: being a
returnee from a perceived centre of LTTE fundraising and activity; the
existence of visible scarring; the Applicant’s name being a name common among
LTTE officials; and his fear of being targeted by the Eelam People’s Democratic
Party and paramilitaries.
B.
Respondent’s Submissions
[31]
The Respondent submits that the Applicant has
not demonstrated a reviewable error. Rather, he is disputing the sufficiency of
the reasons and attempting to reweigh the evidence.
[32]
The Respondent’s position is that the Applicant
failed to establish he is a refugee sur place. This Court has found in a
number of cases that one is not a refugee sur place by virtue of being a
Tamil male from Sri Lanka, including from the North, who travelled to Canada
aboard a human smuggling ship (PM v Canada (Minister of Citizenship and
Immigration), 2013 FC 77, [PM] at para 16; Canada (Minister of
Citizenship and Immigration) v B380, 2012 FC 1334 at paras 2, 3, 10, 16-18,
23-24; Canada (Minister of Citizenship and Immigration) v B472, 2013 FC
151 at para 28; Canada (Minister of Citizenship and Immigration) v B323,
2013 FC 190; B223 v Canada (Minister of Citizenship and Immigration),
2013 FC 511 at paras 1, 4, 6, 8, 10; Canada (Minister of Citizenship and
Immigration) v A011, 2013 FC 580 at para 40; Ganeshan v Canada (Minister
of Citizenship and Immigration), 2013 FC 841, at paras 1, 24, 31-35; Sivanathan
v Canada (Minister of Citizenship and Immigration), 2014 FC 184 at paras 2,
10, 12; Thevarasa v Canada (Minister of Citizenship and Immigration),
2014 FC 234 at para 3, 10, 32, 33; Yathavarjan v Canada (Minister of
Citizenship and Immigration), 2014 FC 146, [Yathavarjan], at paras
5, 7, 9, 46, 54, 56).
[33]
The Respondent also notes that this Court has
upheld decisions which found Tamil males arriving aboard the Sun Sea or Ocean
Lady not at risk as perceived LTTE supporters based on a lack of
credibility, the UNHCR Guidelines and evidence that Sri Lankan authorities do
not view all passengers who arrived abroad these vessels as LTTE supporters (SA
v Canada (Minister of Citizenship and Immigration), 2014 FC 146 at paras
52-55; Yathavarajan at paras 53-54; B231 v Canada (Minister of
Citizenship and Immigration), 2013 FC 1218 at paras 60, 64, 69).
[34]
The Respondent submits that the RPD reasonably
found there was insufficient evidence that the Sri Lankan government suspects
individuals to have links to the LTTE by virtue of having been smuggled to
Canada abroad a ship owned and operated by the LTTE. The RPD noted that the Sri
Lankan government had no reason to believe the Applicant was an LTTE member or
supporter and questioned why the Applicant would be arrested, detained, or
tortured given that he had little or no profile with the authorities. Contrary
to the Applicant’s argument, the RPD did consider whether the Applicant would
be at risk because he was detained and interrogated by CBSA but found the Sri
Lankan authorities would conclude that the Canadian authorities would have
investigated whether the Applicant had LTTE ties before releasing him. The RPD
also stated the Applicant could provide a copy of the RPD’s reasons finding he
did not have any association with the LTTE. The onus was on the Applicant to
demonstrate it would be probable that he would be at risk because he was
detained and questioned by Canadian authorities, but the Applicant cited no
authority or documentation to support this or to show he would be at risk,
especially as his brother was released by the army shortly after his departure
and resides with their parents in Sri Lanka and there is no evidence his
brother has been mistreated.
[35]
The Respondent also argues that the Applicant’s
reliance on B407 is misplaced as in that case, the analysis of the sur
place claim was rendered in one sentence. Here, the RPD provided
comprehensive reasons for why the Applicant would not be at risk if he returned
to Sri Lanka. While the RPD acknowledged that there is evidence the Sri Lankan
authorities employ torture, the Applicant failed to demonstrate he faces more
than a mere possibility of risk. The RPD considered the post-hearing disclosure
regarding B005 and B016 but found the Applicant was not similarly situated.
While the RPD recognized that mistreatment was possible, it found that the risk
was not beyond a mere possibility. This finding was open to the RPD on the
record (SK v Canada (Minister of Citizenship and Immigration), 2013 FC
78 at paras 21, 22, 25; PM, at paras 11, 12-14, 17). The RPD may rely on
some pieces of evidence over others where the evidence is conflicting (Kaur
v Canada (Minister of Citizenship and Immigration), [2002] FCJ No 190 at
para 22).
[36]
The RPD considered the Applicant’s entire
profile in context, but determined that the Applicant did not fit the profile
at risk. All of the elements are tied to whether the Applicant would be viewed
as an LTTE supporter, which the RPD determined he was not. He was released
after being questioned by Sri Lankan authorities, and was allowed to leave on a
valid passport. Read in light of the record, the Decision sets out the basis
for the refusal based on a thorough assessment of the evidence.
V.
Analysis
A.
What is the applicable standard of review?
[37]
The parties agree that the standard of review
applicable to all issues is reasonableness, which is concerned with the
existence of “justification, transparency and
intelligibility within the decision-making process” and “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and the law”
(Dunsmuir v New Brunswick, 2008 SCC 9 at paras 47-48).
B.
Did the RPD make reviewable errors, rendering
its decision unreasonable?
[38]
Although the RPD is owed a significant degree of
deference in its assessment of the evidence and its findings as to the risk of
persecution the Applicant would face if returned to Sri Lanka, I am satisfied
that it made reviewable errors in its assessment of such risk in its analysis
of the Applicant’s sur place claim.
[39]
The Applicant relies heavily on authorities such
as B407 to the effect that the RPD errs in considering a claim of this
nature if it considers only past links to the LTTE as opposed to whether the
claimant would be linked to the LTTE upon return to Sri Lanka as a result of
travelling on the MV Sun Sea. I do not believe the RPD erred in this
particular respect, as it specifically posed in its Decision the question
whether the Sri Lankan authorities would now perceive the Applicant to have
LTTE links simply by virtue of his having travelled on the ship.
[40]
However, it is my conclusion that the RPD erred
in another respect, by failing to address the Applicant’s circumstances
cumulatively and by failing to consider relevant evidence.
[41]
It is well-established that a claimant who is
found to lack credibility (as was the Applicant in the case at hand) may still
have a well-founded fear of persecution, which may be assessed based on the
objective evidence regarding country conditions and the claimant’s risk profile
(Kandiah v Canada (Minister of Citizenship and Immigration), 2005 FC 181
at para 18; Maimba v Canada (Minister of Citizenship and Immigration),
2008 FC 226 at para 22). The Respondent confirmed at the hearing of this application
that it does not take issue with the proposition that the Applicant’s
credibility is not determinative of the outcome of his claim.
[42]
In conducting its analysis, the RPD must assess
the cumulative impact of all the bases of concern put forward by the Applicant
(Boroumand v Canada (Minister of Citizenship and Immigration), 2007 FC
1219 at para 63, Yener v Canada (Minister of Citizenship and Immigration),
2008 FC 372 at para 57). In LS v Canada (Minister of Citizenship and
Immigration), 2014 FC 330, at paras 14-15, the Court confirmed that, if the
RPD’s reasons indicate that it failed to assess cumulatively the relevant risk
factors and, instead, examined each risk element in isolation, the decision may
be set aside.
[43]
In this case, the RPD considered the risk
profiles identified in the UNHCR Guidelines, but found that none of them
applied directly to the Applicant. The RPD noted the evidence indicating that
the Applicant’s brother had been detained by the authorities in Sri Lanka and
later released from a rehabilitation centre, but concluded that “in spite of this familial connection with the LTTE, no
probative evidence was adduced to suggest the claimant was wanted by the
authorities in Sri Lanka” as he was able to travel through checkpoints
to Colombo and leave Sri Lanka without difficulty and testified that he had
never supported or worked for the LTTE himself.
[44]
As the Applicant points out, the fact that a
claimant was able to leave on his own passport is not determinative of the risk
he may face upon return and reflects an overly simplistic approach,
particularly given the information from the Research Directorate of the
Immigration and Refugee Board of Canada that there is no concrete evidence that
the airport alert system used by Sri Lankan authorities contains information on
every individual who has been detained by the police or army. This Court has
held that the fact that a claimant was released from detention or was able to
travel on his or her own passport is not determinative of the risk he or she may
face upon return (B027 v Canada (Minister of Citizenship and Immigration),
2013 FC 485, [B027] at para 8-9; Canada (Minister of Citizenship and
Immigration) v Fernando, 2012 FC 706 at para 13; Abdul v Canada
(Minister of Citizenship and Immigration), 2003 FCT 260 at para 23).
[45]
Regardless, it is significant that the RPD did
not reject the documentation indicating that the Applicant’s brother had been
detained by the Sri Lankan army and held in a rehabilitation camp and referred
to the Applicant having a “familial connection” to
the LTTE, which the UNHCR Guidelines identify as a risk factor. This is
consistent with evidence before the RPD which indicated that, after the war,
many Tamils who were suspected of being LTTE members were detained at
rehabilitation camps run by the army. Counsel for both parties also confirmed
at the hearing of this application that it is undisputed that the Applicant’s
brother is a member of the LTTE.
[46]
It was open to the RPD to find that the
Applicant was not at risk based on this connection as, despite the familial
connection to the LTTE, no probative evidence had been adduced to suggest that
the Applicant was wanted by the authorities in Sri Lanka. However, the RPD
failed to consider how this connection, viewed together with the other factors,
including the Applicant’s status as a Tamil male from the North with visible
scarring and his travel to Canada aboard the MV Sun Sea, would
collectively contribute to the risk that he would be perceived as an LTTE
supporter and face persecution if he were to return to Sri Lanka.
[47]
The RPD had before it evidence that those
suspected of LTTE connections are at a higher risk of being detained at the
airport and facing torture. The RPD appears to have accepted this evidence,
noting that the reports indicated that “those at
particular risk of torture are Tamils who have an actual or perceived
association with the LTTE or have a history of having opposed the government”.
The RPD found that there was insufficient evidence to conclude that the
Applicant had any ties to the LTTE or a history of having opposed the
government. But it stated that “the issue of his having
travelled on the MV Sun Sea will be examined separately under the
heading of sur place”.
[48]
In its subsequent analysis of the sur place
claim, the RPD did not refer to or consider the effect of the Applicant’s
familial connection with the LTTE. In my view, this connection distinguishes
this case from those referred to by the Respondent in which the Court has
upheld RPD decisions dismissing the claims of other MV Sun Sea
passengers, who have not been found to have any actual or perceived connection
to the LTTE. The failure to mention this significant factor anywhere in its
analysis of the sur place claim suggests that the RPD failed to consider
it in the context of the sur place claim. This suggests the RPD made its
decision without regard for the evidence (Cepeda-Gutierrez v Canada
(Minister of Citizenship and Immigration) [1998] FCJ No 1425 at para 17).
[49]
In my view, the reasons indicate that the RPD
considered the risk factors in isolation. In analyzing his sur place
claim, it considered whether the Applicant would be perceived to have links to
the LTTE by virtue of his having travelled aboard the MV Sun Sea. The
RPD found that there was no indication that the Applicant has been involved in
or supportive of any pro-LTTE organizations while in Canada. But the RPD failed
to consider how the various factors established on the evidence, including his
familial connection with the LTTE, together might have resulted in more than a
mere possibility of persecution. This is comparable to the decision in B027,
where Justice Harrington concluded, at paragraph 11, that the member did not
analyze the circumstances cumulatively and that, given factors including B027’s
ethnicity, the nature of his injury, the fact that he worked in the northern
controlled part of Sri Lanka, that he and his wife were passengers on the MV
Sun Sea, it may well be that they would face a serious risk of persecution
if returned to Sri Lanka.
[50]
The Respondent’s counsel submitted in oral
argument that the fact the Applicant’s brother is an LTTE member actually makes
the Applicant’s claim less compelling. The Respondent’s argument is that, as
the Applicant’s brother currently resides with their parents in Sri Lanka and
there is no evidence he has been mistreated, it would not be logical that the
Applicant, whose only connection to the LTTE is through his brother, would be
mistreated when the brother has not been.
[51]
While there may be logic to that argument, it is
inconsistent with the evidence in the UNHCR Guidelines that previous (real or
perceived) links to the LTTE that go beyond prior residency in an area
controlled by the LTTE continue to expose individuals to treatment which may
give rise to a need for protection. These links may include family connections
to others who are associated with the LTTE. The RPD appears to have accepted
the probative value of the UNHCR Guidelines. Further, the RPD did not, in the
reasons given for its Decision, engage in an analysis akin to the argument
advanced by the Respondent in this respect.
[52]
The RPD also failed to refer to the two reports
cited by the Applicant: a report from Amnesty International dated June 12, 2012
regarding the risks to passengers on the MV Sun Sea and MV Ocean Lady,
concluding that the passengers faced a risk of persecution due to their
perceived links to the LTTE; and, a report by Freedom from Torture dated
September 13, 2012 called “Sri Lankan Tamils tortured on return from the UK”.
This Court has found that the RPD has erred in failing to refer to and discuss
the findings of this particular Amnesty International report. In the recent
decision in Thanabalasingam v Canada (Minister of Citizenship and
Immigration), 2015 FC 397, in relation to this report, Justice Fothergill
held as follows at paragraph 17:
[17] Both Justice Russell in Y.S.
and Justice Strickland in B381 v Canada (Minister of Citizenship and
Immigration), 2014 FC 608 [B381] emphasized the AI Report in
assessing the sur place claims of asylum-seekers who travelled on the MV
Sun Sea. In B381, Justice Strickland found that the failure of the
Board to explain why it discounted the AI Report rendered its decision
unreasonable (at para 58). Similarly in this case, the Board’s failure to
explain why it discounted the AI Report and other contradictory evidence
renders its decision unreasonable.
[53]
On this point, the Respondent argues that the
Decision does refer to the RPD having considered reports and counsel’s
submissions that suggest that returnees are at a heightened risk of being
detailed at the airport and at risk of torture should the returnees have
connections to the LTTE. The RPD cites another Amnesty International report
(not the report that is the subject of the Applicant’s argument) as finding
that those at particular risk are Tamils who have an actual or perceived
association with the LTTE or have a history of having opposed the government.
The RPD then proceeds to find that there is insufficient evidence that the
Applicant has such ties or such a history, concluding by stating that the issue
of his having travelled on the MV Sun Sea will be examined separately
under the heading of sur place.
[54]
It is accordingly apparent, from the particular
evidence to which the RPD refers and its reference to a separate and subsequent
examination of the issue of the Applicant having travelled on the MV Sun Sea,
that the RPD was not considering, as part of its analysis in the portion of the
Decision to which the Respondent refers, the evidence from Amnesty
International to the effect that passengers on the MV Sun Sea face a
risk of persecution due to their perceived links to the LTTE.
[55]
In my view, as a result of the RPD’s failure to
consider this documentary evidence, combined with its failure to consider
cumulatively the risk factors faced by the Applicant in analysing the
Applicant’s sur place claim, the Decision is not defensible and is not
within the range of acceptable outcomes.
VI.
Conclusion
[56]
For the reasons given above, the application for
judicial review is allowed and the matter is remitted to a different panel of
the RPD for reconsideration.
[57]
No question of general importance has been
submitted to the Court for consideration for certification.
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