Docket: IMM-3979-13
Citation:
2015 FC 1
Ottawa, Ontario, January 6, 2015
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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ARUN PRASATH MUTHUTHEVAR
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
Mr Arun Prasath Muthuthevar sought refugee
protection after having been found inadmissible to Canada based on serious
criminal activity. He founded his refugee claim on the fact that his father had
been forced to assist the Liberation Tigers of Tamil Eelam (LTTE) and had
subsequently been detained and tortured by the Sri Lankan Army. Mr
Muthuthevar’s father was found to have a well-founded fear of persecution in Sri Lanka and was granted refugee protection here.
[2]
A panel of the Immigration and Refugee Board
denied Mr Muthuthevar’s claim given that he did not fit the profile of those at
risk of persecution in Sri Lanka. Further, it appeared that security personnel
in Sri Lanka were not looking for him as he was able to leave Sri Lanka freely on his own passport. Finally, the evidence did not suggest that Mr
Muthuthevar would be subjected to mistreatment on his return to Sri Lanka as a failed asylum seeker.
[3]
Mr Muthuthevar contends that the Board applied
the wrong legal test for protection and imposed too great a burden on him to
prove his claim. In addition, Mr Muthuthevar argues that the Board’s decision
was unreasonable because it did not take account of critical evidence
supporting his claim, or documentary evidence about current conditions in Sri Lanka.
[4]
I cannot conclude that the Board applied the improper
standard of proof. However, it did overlook relevant evidence. Its conclusion
was unreasonable.
[5]
There are two issues:
1.
Did the Board apply the wrong standard?
2.
Did the Board overlook important evidence?
II.
The Board’s Decision
[6]
The Board’s principal finding was that, on a
balance of probabilities, Mr Muthuthevar would not face a risk of persecution
or harm if he returned to Sri Lanka. The Board expressed the standard of a
“balance of probabilities” numerous times in the reasons both in relation to s
96 and 97 of the Immigration and Refugee Protection Act, SC 2002, c 27
[IRPA]).
[7]
The Board found that Mr Muthuthevar did not fit
the profile of persons who may be at risk of mistreatment on return to Sri Lanka. It cited numerous independent reports and studies in which the authors concluded
that the persons at risk were those with ties to the LTTE. According to the
Board, Mr Muthuthevar obviously did not fit that profile as he had been able to
leave the country freely on his own passport.
[8]
Further, the preponderance of the evidence,
according to the Board, indicated that failed asylum seekers returning to Sri Lanka would be questioned on their arrival, but would not be subjected to persecution.
Finally, the Board found that any risk relating to Mr Muthuthevar’s perceived wealth
was a generalized risk, one not protected under s 97 of IRPA.
III.
Issue One – Did the Board apply the wrong
standard?
[9]
Mr Muthuthevar submits that the Board erred by
using the standard of a balance of probabilities in relation to s 96 of IRPA
where the burden on a refugee claimant simply is to show more than the mere
possibility of persecution. A claimant does not have to show that persecution
is more likely than not.
[10]
I disagree. For the most part, the Board applied
the proper standard. The one instance in which the Board may have articulated
the wrong test does not show, in my view, that the Board misunderstood the
burden on a refugee claimant.
[11]
The standard of proof in refugee cases is a
mixture of the ordinary civil standard – the balance of probabilities – and the
special standard unique to the immigration context meant to capture the concept
of risk. The latter is sometimes expressed as a “reasonable
chance of persecution” or “more than a mere
possibility of persecution”. Accordingly, the proper standard is proof
on a balance of probabilities that the claimant will face a reasonable chance,
or more than a mere possibility, of persecution. If a claimant meets that
standard, then he or she will have established a well-founded fear of
persecution, which is the norm set out in s 96 of IRPA. (See Alam v Canada (Minister of Citizenship and Immigration), 2005 FC 4, at para 8).
[12]
Here, the Board employed the civil standard with
respect to discrete findings of fact, which is appropriate and uncontested. The
Board also repeatedly combined the civil standard with the concept of risk when
determining whether Mr Muthuthevar had met the test under s 96. Some examples:
•
“I find there to be a
change in circumstances of country conditions so that, on a balance of
probabilities, he would not face a risk of persecution or harm”;
•
“I also find, on a
balance of probabilities, that the claimant does not face a serious risk of
harm or to life”;
•
“I find that, on a
balance of probabilities, the claimant would not face a serious risk of
persecution”;
•
“I find, on a balance of
probabilities, that, should the claimant return to Sri Lanka, there is not a
serious possibility that he will be subjected personally to persecution”.
[13]
These findings led the Board to its ultimate
conclusion that Mr Muthuthevar had failed to show on a balance of probabilities
that his fear was well-founded. I can find no error on the Board’s part in
these expressions of the applicable standard of proof.
[14]
The Board made one statement that could give
rise to a legitimate concern: “I find that the
situation, while not perfect, is not such that the claimant will be
persecuted due to any Convention ground” (my emphasis). That sentence
suggests that Mr Muthuthevar had to prove that he would be persecuted in
Sri Lanka in order to succeed on his refugee claim. The Board should have
said “I find that the situation, while not perfect, is
not such that the claimant will face more than a mere possibility of
persecution on any Convention ground”. However, looking at this
statement in the context of all of the other expressions of the proper
standard, I am not satisfied that the Board misunderstood or misapplied the
appropriate standard of proof.
IV.
Issue Two - Was the Board’s decision
unreasonable?
[15]
Mr Muthuthevar maintains that the Board’s
decision was unreasonable in three respects. First, the Board wrongly inferred
that, because he had been able to leave Sri Lanka without drawing the attention
of security officials, he would not be targeted on his return. Second, the
Board overlooked recent evidence showing that the situation in Sri Lanka has not improved as much as the Board believed. Third, the Board erred by finding
that the risk related to targeting persons perceived to be wealthy was a
generalized risk, not coming within the protection provided by IRPA.
[16]
I am satisfied that the Board reached an
unreasonable conclusion on the first question. Therefore, it is unnecessary for
me to consider the other arguments Mr Muthuthevar presented.
[17]
In my view, the Board was entitled to take note
of the fact that Mr Muthuthevar had no problems leaving Sri Lanka in 2001. Authorities probably did not regard him as being associated with the
LTTE at that time.
[18]
However, I agree with Mr Muthuthevar that the
Board had to go on to consider whether he would now be suspected of having LTTE
ties. He was a 16-year-old boy in 2001; he is now a man in his late 20s. He has
spent a long time in Canada, a country regarded by some as harbouring LTTE
activities. His father was granted refugee status in Canada based on his fear
of persecution in Sri Lanka after having been accused of being an LTTE member.
[19]
In my view, the Board should have considered
whether these additional factors, which obviously arose after Mr Muthuthevar’s
departure from Sri Lanka, might cause authorities to regard him differently
than they did in 2001. Some recent documentary evidence, not considered by the
Board, suggests that failed asylum seekers are more likely to be associated
with the LTTE and arrested on their return to Sri Lanka. The evidence also
shows that detainees are more likely to be mistreated than they were a few
years ago. The Board should have considered this evidence before discounting
the risk to Mr Muthuthevar on the sole basis that he was able to leave the
country freely in 2001.
[20]
Accordingly, I am satisfied that the Board’s decision
did not represent a defensible outcome based on the facts and the law.
V.
Conclusion and Disposition
[21]
While the Board applied the proper standard of
proof, it failed to consider whether Mr Muthuthevar might be at risk of
persecution in Sri Lanka based on his current profile, rather than his
circumstances in 2001. Therefore, its decision was unreasonable, and I must
overturn it and order another panel of the Board to reconsider Mr Muthuthevar’s
claim. Neither party proposed a question of general importance for me to
certify, and none is stated.
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