Docket: IMM-3822-15
Citation:
2016 FC 691
Ottawa, Ontario, June 20, 2016
PRESENT: The
Honourable Mr. Justice Gascon
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BETWEEN:
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SURESTHIRANAGAM
SOORASINGAM
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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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JUGEMENT AND REASONS
I.
Overview
[1]
Mr. Suresthiranagam Soorasingam, a Tamil male
from Sri Lanka, challenges a decision of the Refugee Protection Division [RPD]
of the Immigration and Refugee Board of Canada issued on June 29, 2015, determining
that he was neither a Convention refugee nor a person in need of protection
pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act,
SC 2001, c 27. Mr. Soorasingam had sought refugee protection on the basis of
his fear of persecution or harm in Sri Lanka, his country of nationality. The
RPD rejected Mr. Soorasingam’s claim as it found that his fear of persecution
and allegations were not credible.
[2]
Mr. Soorasingam contends that the RPD’s decision
was unreasonable. He asks this Court to quash the decision and to order another
panel of the RPD to reconsider his claim.
[3]
The only issue to be determined is whether it
was reasonable for the RPD to reject Mr. Soorasingam’s claim for refugee
protection on the basis that it lacked credibility. Counsel for Mr. Soorasingam
confirmed at the hearing before this Court that this was the only issue being
pursued in this judicial review despite the fact that other submissions had
been made before the RPD.
[4]
For the reasons that follow, Mr. Soorasingam’s application
for judicial review is dismissed. Having considered the decision, the evidence
before the RPD and the applicable law, I find no basis for overturning the
RPD’s findings. The decision thoroughly reviewed the evidence and the RPD’s
conclusions fall within the range of possible, acceptable outcomes based on the
facts and the law.
II.
Background
A.
Facts
[5]
Mr. Soorasingam is from Point Pedro, in the
northern Tamil region of Sri Lanka, and is of “mixed”
heritage, his father being Sinhalese and his mother Tamil. Mr. Soorasingam
alleges that, in September 2006, he and his father were approached by militants
of the Eelam People's Democratic Party [EPDP], who demanded that they pay
them five lakh rupees. Mr. Soorasingam and his father refused, stating they did
not have the money to pay. In October 2006, two men on a motorbike allegedly came
to Mr. Soorasingam’s family home, calling his name. When Mr. Soorasingam and
his father went outside, the men began to shoot at them, killing Mr.
Soorasingam’s father.
[6]
Almost five years later, in September 2011, Mr.
Soorasingam says that he was abducted by EPDP militants and was subsequently
beaten and tortured. To secure his release, the militants demanded that Mr.
Soorasingam pay them five lakh rupees. Mr. Soorasingam claims that he was
eventually released on September 27, 2011, on the promise that he would collect
the money required to pay the ransom. In December 2011, Mr. Soorasingam fled to
Colombo, where he went into hiding. He then left Sri Lanka in January 2012,
travelling first to Mexico and then crossing the border illegally into the
United States in February 2012.
[7]
Mr. Soorasingam was detained by the American
authorities soon after, and claimed refugee protection in the United States.
However, he did not wait for the determination of his claim in the United
States, and instead came to Canada where he sought refugee protection.
B.
The RPD decision
[8]
In its decision, the RPD held that Mr.
Soorasingam’s credibility was undermined by a series of omissions,
contradictions and implausibilities in his testimony.
[9]
First, the RPD found that Mr. Soorasingam was
unable to explain a number of his actions, including why he waited almost six
years from the time of his father’s shooting to flee Sri Lanka, given his
testimony that this event had spurred his desire to leave the country, and why
he waited two months after his release to flee Point Pedro for Colombo. On this
latter point, the RPD further held that it was implausible that his kidnappers
would not have come looking for Mr. Soorasingam during the period after his
release, given that they only released him to allow him to collect the
necessary funds to pay the demanded ransom.
[10]
Second, the RPD identified a number of
inconsistencies in Mr. Soorasingam’s statements that he was unable to
satisfactorily explain, including:
- Mr. Soorasingam’s testimony that he received treatment for
injuries he suffered during his kidnapping soon after he was released,
despite stating in his narrative that he only received treatment for his
injuries once he arrived in Colombo, two months after he was injured;
- Mr. Soorasingam’s testimony that he remained in hiding for the
entire period he was in Colombo, despite stating in his Basis of Claim [BOC]
that he continued to work as a fisherman until his departure from Sri
Lanka;
- Mr. Soorasingam’s testimony that he gave up his passport upon
arrival in Mexico, despite stating earlier to the Canadian authorities that
he gave up his passport while crossing a river in Mexico.
[11]
Based on these inconsistencies and omissions,
the RPD concluded that Mr. Soorasingam lacked credibility, and that this
finding was sufficient to dismiss his claim for refugee protection.
[12]
In coming to this conclusion, the RPD ascribed
little weight to Mr. Soorasingam’s father’s death certificate, finding that
there was no credible evidence to connect the death certificate to Mr.
Soorasingam’s claim that his father was killed by EPDP militants. Similarly,
the RPD placed no weight on letters provided by Mr. Soorasingam’s alleged
employer and Mr. Soorasingam’s wife, finding that Mr. Soorasingam was unable to
explain how the author of the former letter would have had knowledge of the
events described, and finding that the latter letter was self-serving.
[13]
The RPD also noted that Mr. Soorasingam
presented photographic evidence of scarring following attempts to remove his tattoos
allegedly linking him to the Liberation Tigers of Tamil Eelam organisation.
However, because the RPD had held that Mr. Soorasingam lacked credibility, it
was unable to draw any connection between this evidence and Mr. Soorasingam’s
claims.
[14]
The RPD also held that Mr. Soorasingam’s
decision to leave the United States prior to the final determination of his
claim for refugee protection was inconsistent with the expected behaviour of a
person who fears persecution in his country of nationality. Moreover, the RPD
found that Mr. Soorasingam’s explanation for his decision – that he did not
know anyone in the United States and had family in Canada – was unsatisfactory.
The RPD determined that a person seeking refugee protection is expected to
claim refugee status as soon as possible, and that the failure to do so may
indicate that the claim is not genuine. The RPD found that Mr. Soorasingam’s
failure to remain in the United States until the determination of his application
demonstrated the lack of seriousness to his refugee claim.
C.
The standard of review
[15]
It is well settled that when it comes to the
credibility or plausibility of a refugee claimant’s story or fears of
persecution, the RPD’s findings are factual in nature and, given the RPD’s role
as a trier of fact, are owed a significant amount of deference (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 [Khosa] at para 59; Lawal v Canada (Citizenship and Immigration), 2015 FC 155 [Lawal] at para 9; Martinez
Giron v Canada (Minister of Citizenship and
Immigration), 2013 FC 7 [Martinez Giron] at para 14; Dong v
Canada (Minister of Citizenship and Immigration), 2010 FC 55 at para 17).
[16]
Credibility findings have been described as the “heartland”
of the RPD’s jurisdiction, in that they are essentially pure findings of fact (Pepaj v Canada (Minister of
Citizenship and Immigration), 2014 FC 938 at para
13; Lubana v Canada (Minister of Citizenship and
Immigration), 2003 FCT 116 [Lubana] at paras
7-8). The RPD is thus better placed to assess the credibility of a refugee
claimant as the panel member can see the witness at the hearing, observe the
witness’ demeanour and hear his or her testimony. The RPD has the opportunity
and ability to assess the witness in respect of frankness, readiness to answer,
coherence and consistency of oral testimony before it (Navaratnam v Canada (Minister of
Citizenship and Immigration), 2011 FC 856 at para 23).
In addition, the RPD benefits from the specialized knowledge of its members to
assess evidence relating to facts stemming from their field of expertise (El-Khatib v Canada (Citizenship and Immigration), 2016 FC
471 at para 6).
[17]
Since these are questions of mixed facts and
law, the RPD’s assessments of credibility and plausibility are to be reviewed
on a standard of reasonableness (Aguebor v Canada (Minister of Employment
and Immigration), [1993] 160 NR 315 (FCA) at para 4; Bikoko v Canada (Citizenship and Immigration), 2015 FC 1313 at para 8). On such
credibility and plausibility questions, a reviewing court can neither
substitute its own view of a preferable outcome, nor can it reweigh the
evidence (Khosa at para 59; Mikhno v Canada (Minister of Citizenship and Immigration), 2010 FC 385 at paras 32-33; Diallo v Canada (Minister of
Citizenship and Immigration), 2007 FC 1062 at para 30). The Court must not intervene with the
RPD’s decision so long as it came to a conclusion that is transparent,
justifiable, intelligible, and within the range of possible, acceptable
outcomes that are defensible in respect of the facts and the law (Dunsmuir v
New Brunswick, 2008 SCC 9 [Dunsmuir]
at para 47). It is sufficient
if the reasons permit the Court to understand why the decision was made and
determine whether the conclusion falls within the range of possible, acceptable
outcomes (Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62 [Newfoundland Nurses] at para 16).
[18]
The reasons are to be
read as a whole, in conjunction with the record (Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 53; Dunsmuir at para 47). If
needed to determine the reasonableness of a decision, not only can the Court
review the reasons but it can also look at the underlying record (Newfoundland
Nurses at para 15). That said, a judicial review is
not a “line-by-line treasure hunt for error” (Communications, Energy and Paperworkers
Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34 at
para 54). The Court should approach the reasons with a view to “understanding, not to puzzling over every
possible inconsistency, ambiguity or infelicity of expression” (Canada (Citizenship and Immigration v
Ragupathy, 2006 FCA 151 at para 15).
[19]
The analysis of the
credibility of a refugee claimant must be transparent and intelligible, and the
RPD’s reasons must therefore constitute an assessment of the claimant’s credibility
“in clear and unmistakeable
terms” (Hilo v Canada (Minister of Employment
and Immigration) (1991), 130 NR 236 (FCA) [Hilo] at para 6; Lubana
at para 9). Conversely, an analysis just merely casting a “nebulous cloud over its reliability” will be insufficient as the RPD must draw more than generalized and
vague conclusions but state why and how such credibility is impugned or lacking
(Hilo at para 6).
III.
Analysis
[20]
Mr. Soorasingam submits that the RPD’s
determination on his lack of credibility is unreasonable, as the RPD’s findings
misconstrued elements of his evidence and ignored other portions of it. More
specifically, Mr. Soorasingam submits it is a reviewable error for the RPD to
ignore material evidence or base its findings on irrelevant evidence (Suduwelik
v Canada (Minister of Citizenship and Immigration), 2007 FC 326 at para
21), and that it is also an error to base an adverse credibility determination
on such evidence (Lai v Canada (Minister of Employment and Immigration),
[1992] FCJ No 906 (CA); Rezaei v Canada (Minister of Employment and
Immigration), [1992] FCJ No 40 (CA)).
[21]
First, Mr. Soorasingam argues that the RPD erred
by relying on the fact that he did not flee Sri Lanka until six years after his
father’s death, as his fear of persecution arose after he was kidnapped, not
after his father’s death. Second, Mr. Soorasingam contends that the RPD ignored
or misconstrued his testimony regarding his delay in fleeing Point Pedro for
Colombo, as he was conflicted about leaving his family. Third, Mr. Soorsingam
submits that the RPD engaged in unfounded speculation in finding that it was
implausible for Mr. Soorasingam’s kidnappers to leave him alone after his
release. Fourth, Mr. Soorasingam claims that the RPD erred by placing no weight
on the evidence of the attempted removal of his tattoos. Fifth, Mr. Soorasingam
states that the RPD engaged in an overly microscopic assessment of evidence in
finding that he gave inconsistent testimony regarding the timing of his medical
treatment, his work after fleeing to Columbo and the release of his passport in
Mexico. This, according to Mr. Soorasingam, demonstrates the RPD’s excessive
desire to find contradictions in his testimony where none exists (Attakora v
Canada (Minister of Employment and Immigration), [1989] FCJ No 444 (FCA) [Attakora]
at para 1). Finally, Mr. Soorasingam argues that his explanation for why he did
not wait for his refugee claim in the United States to be determined – that he
has family in Canada – is reasonable, and has previously been accepted by this
Court (Soueidan v Canada (Minister of Citizenship and Immigration), 2001
FCT 956 at para 32).
[22]
I disagree with Mr. Soorasingam as his arguments
all boil down to a reassessment of the evidence. I instead find that the RPD’s
determinations regarding Mr. Soorasingam’s credibility are reasonable and are
entitled to significant deference on judicial review. The RPD provided detailed
reasons stating why Mr. Soorasingam’s testimony was being rejected in light of the
evidence. On all credibility and plausibility issues, Mr. Soorasingam is simply
inviting the Court to reweigh the evidence. It is not the role of the Court to
do so when conducting a reasonableness review of factual findings.
[23]
It is well accepted that the RPD is best
positioned to assess an applicant’s credibility, as it has the benefit of
seeing the applicant’s testimony (Jin v Canada (Minister of Citizenship and
Immigration), 2012 FC 595 at para 10). The RPD is entitled to make a
negative credibility finding where the applicant’s testimony is inconsistent or
contradictory (Lawal at para 9), or where the RPD is unsatisfied with
the applicant’s explanation for those inconsistencies (Lin v Canada
(Minister of Citizenship and Immigration), 2010 FC 183 at para 19). Even if
some elements could be insufficient when considered individually or in
isolation, cumulative inconsistencies, omissions and contradictions can, as a
whole, undermine the overall credibility of a claimant (Sary c Canada
(Ministre de la Citoyenneté et de l’Immigration), 2016 CF 178 at para 20; Quintero
Cienfuegos v Canada (Minister of Citizenship and Immigration), 2009 FC 1262
at para 1; Asashi v Canada (Minister of Citizenship and Immigration),
2005 FC 102 at para 8). In addition, a decision-maker
is entitled to make findings based on implausibilities, common sense and
rationality, and can reject uncontradicted evidence if it is not consistent
with the probabilities affecting the case as a whole (Shahamati v Canada
(Minister of Employment and Immigration), [1994] FCJ No 415 (FCA) at para 2;
Mohamed v Canada (Minister of Citizenship and Immigration), 2015 FC 1379
at para 25).
[24]
This is precisely what occurred in this case. The
RPD identified numerous inconsistencies and contradictions in Mr. Soorasingam’s
evidence, was unsatisfied with his explanations for them and, as a result,
found that Mr. Soorasingam’s evidence lacked credibility. Mr. Soorasingam’s
arguments amount to little more than a disagreement with the RPD’s assessment
of his testimony and the RPD’s weighing of the evidence. This is insufficient
to grant a judicial review (Samseen v Canada (Minister of Citizenship and
Immigration), 2006 FC 542 at para 31; Islam v Canada (Minister of
Citizenship and Immigration), 2005 FC 1422 at para 11).
[25]
More specifically, a review of the record confirms
that Mr. Soorasingam gave inconsistent testimony regarding when he received
treatment for the injuries he suffered during his kidnapping and when he gave
up his passport after his arrival in Mexico. It was also open to the RPD to
find implausible the explanations of Mr. Soorasingam on his six-year delay to
fear persecution or on the elapsed time to flee to Colombo.
[26]
The RPD may not have referred to some evidence
as clearly as Mr. Soorasingam would have preferred, but this is not a ground
for judicial review. For example, the decision may not provide much detail on the
evidence that Mr. Soorasingam’s fear of persecution was caused by his
kidnapping rather than his father’s murder, and or on the fact that he waited
to flee Point Pedro because he did not want to place his wife and children in
danger. But I am satisfied that, overall, the RPD’s implausibility findings on
these points do not tumble outside the scope of acceptable outcomes.
[27]
I also reject Mr. Soorasingam’s suggestion that
the RPD’s analysis was unreasonably “microscopic” or
overzealous. I acknowledge that not every kind of
inconsistency or implausibility in a refugee claimant's evidence will
reasonably support negative findings on overall credibility. It is not proper
for the RPD to base its findings on extensive or overly minute examination of
issues and inconsistencies that are irrelevant or peripheral to the claim,
thereby ignoring serious incidents central to the evidence (Attakora at
para 9; Owusu-Ansah v Canada (Minister of Employment and Immigration),
[1989] FCJ No 442 (FCA) at para 2; Zhang v Canada (Minister of
Citizenship and Immigration), 2014 FC 713 at para 27). But this is not a situation where the RPD erroneously applied a “microscopic examination” of Mr. Soorasingam’s testimony
or relied on “peripheral discrepancies” to
discredit the claimant. An analysis does not become microscopic because it is
comprehensive. The factors looked at by the RPD were not issues secondary to
the claim of persecution of Mr. Soorasingam; they were in fact highly relevant
and went to the very essence of his claim.
[28]
Conversely, a lack of credibility on the central
elements of a refugee claim can extend to all the evidence submitted (Sheikh
v Canada (Minister of Employment and Immigration), [1990] 3 FC 238
(FCA) at para 8).
[29]
I am mindful that caution is required regarding
implausibility findings in refugee cases (Valtchev v Canada (Minister of
Citizenship and Immigration), 2001 FCT 776 at para 7). Implausibility
findings should be made only in the clearest of cases, and the RDP must always sufficiently
set out its reasons for making such findings (Kiyarath v Canada (Minister of
Citizenship and Immigration), 2005 FC 1269 at para 22). Otherwise, the
implausibility finding can be seen as arbitrary and unreasonable (Yu v
Canada (Minister of Citizenship and Immigration), 2015 FC 167 at paras 10,
12; Martinez Giron at para 24). I am not persuaded that the RPD’s
findings on Mr. Soorasingam’s story fall in that category. On the contrary, the
RPD’s assessment was made in clear and unmistakeable
terms with detailed conclusions on why Mr. Soorasingam’s was lacking.
[30]
There is also no basis for an inference that the
RPD ignored material evidence that squarely contradicted his conclusions (Canada
(Citizenship and Immigration) v Abdulghafoor, 2015 FC 1020 at para 22). As
I stated in Mirmahaleh v Canada (Citizenship and Immigration), 2015 FC
1085 at para 25, a tribunal is presumed to have considered all the evidence and
is not required to refer to each constituent element of that evidence (Newfoundland
Nurses at para 16; Florea v Canada (Minister of
Employment and Immigration), [1993] FCJ No
598 (FCA) at para 1; Hassan v Canada (Minister of
Citizenship and Immigration), [1992] FCJ No 946
(FCA) at para 3). A failure to mention a particular
piece of evidence does not mean that this was ignored or that all the evidence was not considered (Cepeda-Gutierrez v Canada
(Minister of Citizenship and Immigration) (1998), 157 FTR 35 (FCTD) at
paras 16-17). It is only when a tribunal is silent on evidence clearly pointing
to the opposite conclusion that the Court may intervene and infer that the
tribunal overlooked the contradictory evidence when making its finding of fact.
This is not the case here.
[31]
In summary, I find the analysis by the RPD to be
transparent, justifiable and intelligible. Any reader can know exactly why the
RPD did not believe Mr. Soorasingam. The negative credibility finding “falls within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law” (Dunsmuir, above
at para 47). I also conclude that the RPD engaged in a thorough and detailed
assessment of the totality of the evidence. There is no fatal flaw in its reasoning
and I find the ultimate result reasonable considering the applicable legal principles.
IV.
Conclusion
[32]
The RPD thoroughly reviewed the evidence
submitted by Mr. Soorasingam in support of his claim and found it implausible that
he would face a risk of persecution if he returned to Sri Lanka. The conclusion
was not unreasonable and represented a defensible outcome based on the law and
the evidence before the RPD. On a standard of reasonableness, it suffices if
the decision subject to judicial review falls within the range of acceptable,
possible outcomes which are defensible in respect of the facts and the law.
Therefore, I must dismiss this application for judicial review.
[33]
Neither party has proposed a question of general
importance to certify, and I agree there is none.
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