Docket: IMM-1385-13
Citation:
2015 FC 25
Ottawa, Ontario, January 8, 2015
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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SUKIRTHAN MAYILVAGANAM
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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
I.
Overview
[1]
Mr Sukirthan Mayilvaganam, a Tamil male from the
north of Sri Lanka, claims to fear persecution by the Eelam People’s Democratic
Party (EPDP) who questioned him in 2010 about any connections he might have had
to the Liberation Tigers of Tamil Eelam (LTTE). Concerned about further trouble
from the EPDP, Mr Mayilvaganam left Sri Lanka in the fall of 2010 and travelled
through a number of different countries before arriving in Canada in late 2011, where he claimed refugee protection.
[2]
A panel of the Immigration and Refugee Board
rejected Mr Mayilvaganam’s claim on the basis that his profile did not match
those of persons at risk of persecution or other serious harm in Sri Lanka. In particular, it found that persons suspected of having ties to the LTTE were
most at risk of persecution. It was not satisfied that Mr Mayilvaganam would
be associated in any way with the LTTE and therefore dismissed his claim.
[3]
Mr Mayilvaganam argues that the Board’s decision
was unreasonable because it failed to acknowledge that Sri Lankan authorities and
other groups disproportionately detain, question, and mistreat Tamil males. In
addition, the Board overlooked the fact that he risks further questioning from
the EPDP, an organization known for arbitrary detention, which had already
suspected him of having a connection to the LTTE. Finally, Mr Mayilvaganam submits
that the Board failed to conduct a proper analysis of risk under s 97 of the Immigration
and Refugee Protection Act, SC 2002, c 27 [IRPA]. He asks me to quash the
Board’s decision and order another panel to reconsider his claim.
[4]
I can find no basis for overturning the Board’s
decision. The Board thoroughly reviewed the documentary evidence relating to
persons at risk in Sri Lanka. Its conclusion that Mr Mayilvaganam was unlikely
to face a risk of persecution or other mistreatment in Sri Lanka was not unreasonable on that evidence. In the circumstances, a separate analysis
under s 97 was not required.
[5]
There are two issues:
1.
Was the Board’s decision unreasonable?
2.
Should the Board have conducted a separate
analysis under s 97 of IRPA?
II.
Issue One – Was the Board’s decision
unreasonable?
[6]
Mr Mayilvaganam argues that the Board
unreasonably failed to recognize that Tamil males are more likely to be
arrested arbitrarily in Sri Lanka and, once detained, are exposed to a risk of
mistreatment. This, in his view, amounts to a risk of persecution in itself.
[7]
Further, Mr Mayilvaganam maintains that the
Board did not take adequate account of the fact that the EPDP said they would
return to question him again; therefore, he faces a possibility of detention
and mistreatment on the part of the EPDP, who obviously regard him as having
some kind of connection to the LTTE.
[8]
Additionally, Mr Mayilvaganam suggests that the
Board set the bar too high when it rejected his claim. The Board found that he
did not fit the profile of a person targeted in the past such that he would be
targeted in the future. However, the burden on applicants is merely to show
more than a mere possibility of persecution – they do not have to prove that
they will actually be targeted in the future. Accordingly, Mr Mayilvaganam says
that the Board misstated the burden of proof.
[9]
I am not persuaded by Mr Mayilvaganam’s
submissions.
[10]
The Board carefully reviewed the documentary
evidence, which consistently states that there is a risk of persecution for
those persons who are suspected of having current or past ties to the LTTE. The
Board reasonably found that Mr Mayilvaganam did not fall within this category.
True, he had been questioned previously by the EPDP in that connection, but he
had been released unharmed. While the EPDP said they would return to question
him again, there was no evidence that it had subsequently sought him out or
tried to contact his remaining family in Sri Lanka.
[11]
The Board’s ultimate conclusion was that Mr
Mayilvaganam’s claim was not objectively well-founded. The statement that Mr
Mayilvaganam disputes simply expressed the Board’s finding that past
questioning would not necessarily lead to future targeting. As I read it, the Board
was not stating the burden of proof on Mr Mayilvaganam; it was merely making a
finding of fact.
[12]
Therefore, based on the law and the facts before
it, I am satisfied that the Board’s decision represented a defensible outcome.
III.
Issue Two – Should the Board have carried out a
separate analysis under s 97 of IRPA?
[13]
Mr Mayilvaganam maintains that the Board erred
in failing to consider whether he was at risk of death, or cruel and unusual
treatment or punishment under s 97 of IRPA.
[14]
I disagree.
[15]
The Board’s finding that Mr Mayilvaganam was
unlikely to experience a risk of persecution if he returned to Sri Lanka was sufficient to dispose of the question whether he was at risk of death, or of
cruel and unusual treatment or punishment. It was unnecessary for the Board to
make a separate finding.
IV.
Conclusion and Disposition
[16]
The Board thoroughly reviewed the relevant
documentary evidence and found it unlikely that Mr Mayilvaganam would face a
risk of persecution or other mistreatment if he returned to Sri Lanka. That conclusion was not unreasonable on the evidence. Therefore, I must dismiss
this application for judicial review. Neither party proposed a question of
general importance for me to certify, and none is stated.
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