Docket: IMM-4549-15
Citation:
2016 FC 408
Ottawa, Ontario, April 13, 2016
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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AKILAN
SATHASIVAM
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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
[1]
The applicant, a Tamil citizen of Sri Lanka, seeks
judicial review of a decision of the Refugee Protection Division [RPD] of the
Immigration and Refugee Board [Board], which found that he is neither a refugee
nor a person in need of protection. Although the RPD’s decision also dealt with
the claim of the applicant’s brother, only the applicant’s claim is under
consideration by the Court today.
[2]
The applicant, a 24 year old single Tamil male, is
an auto-rickshaw driver from Valvetty, in northern Sri Lanka. He claims to fear
persecution at the hands of the Sri Lankan army and police, as well as a
pro-government Tamil paramilitary group called the Eelam People’s Democratic
Party [EPDP], as a result of being perceived to be a member or supporter of the
Liberation Tigers of Tamil Eelam [LTTE]. He relies on the following three
incidents to support his claim:
•
In June 2013, the applicant was detained for two
hours and questioned by the army about his connection to the LTTE. He denied
having any connection with them and was not physically mistreated at this time;
•
Around June 2014, the applicant was questioned
by the army again, for about 20 minutes, about his connection to the LTTE;
•
In August 2014, the applicant was arrested and
taken to an army camp, where he was detained and threatened, but not physically
mistreated. The applicant’s family paid a bribe to have him released.
[3]
The applicant’s older brother also had several
interactions with the army and/or EPDP between early 2009 and January 2012,
when he left the country, but unlike the applicant, he was physically assaulted
by these groups while in detention.
[4]
In November 2014, the applicant left Valvetty.
Over the next months, he travelled through several countries, including the
United States. In January 2015, the EPDP came to the applicant’s home in
Valvetty, asking about his whereabouts. On April 27, 2015, the applicant
arrived in Canada. He made a refugee claim shortly thereafter.
[5]
The RPD did not really question the veracity of
the applicant’s story or his subjective fear, so I dismiss any ground of attack
that the RPD erred by failing to make credibility findings in clear and
unmistakable terms. The applicant also claims that the RPD failed to consider
whether he falls within the compelling reasons exception under subsection 108(4)
of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
However, in order for this exception to apply, it must first be established
that the applicant was, but is no longer, a Convention refugee, due to changes
in the applicant’s home country (Niyonzima v Canada (Minister of Citizenship
and Immigration), 2012 FC 299 at para 56). This requirement is not met here.
[6]
It is well-accepted that under section 96 of
IRPA, a claimant must establish, on a balance of probabilities, that there is a
reasonable chance or serious possibility of a risk of future persecution (Adjei
v Canada (Minister of Employment & Immigration), [1989] 2 FC 680 at
paras 5-6; Alam v Canada (Minister of Citizenship & Immigration),
2005 FC 4 at paras 5-8; Florea v Canada (Minister of Citizenship &
Immigration), 2005 FC 1472 at paras 23-24). While the test is correctly
stated by the RPD at the beginning and end of its analysis, the applicant
submits that two passages elsewhere in the decision suggest that instead of considering
whether there was a “serious possibility” of persecution, the RPD applied a
higher “balance of probabilities” test. I have closely read the passages
invoked by the applicant and I am satisfied that, when read as a whole, the
reasons demonstrate that the RPD applied the correct test (Thiyagarasa v
Canada (Minister of Citizenship and Immigration), 2016 FC 48 at paras
22-24).
[7]
With respect to the claims of the applicant and
his brother, the determinative issue was whether, because of their ethnicity
and age, they had a well-founded fear of persecution and/or would be subjected
personally, on a balance of probabilities, to a risk to life, a risk of cruel
and unusual treatment or punishment, or a danger of torture, upon returning to
Sri Lanka. The RPD notably concluded that “[t]he
claimants do not have a profile that would raise their risk of harm beyond a
level of mere possibility (that is, there is not a reasonable chance that they
would suffer persecution)”.
[8]
More particularly, the RPD found that “[b]ased on the evidence adduced, it does not appear that the
government authorities, the SLA [Sri Lanka Army], or any paramilitary group
such as the EPDP considers the claimants to be LTTE or LTTE supporters”.
In particular, the RPD noted that the applicant was released after each of his
detentions, that he was not physically harmed, that the detentions themselves
were not very long, and that, on one occasion, he was released as the result of
a bribe. The RPD inferred from these facts that the army did not believe that
the applicant was associated with the LTTE, but instead was targeting him for
the purpose of extortion. The RPD also noted that, although the EPDP had inquired
as to the applicant’s whereabouts after he left Valvetty, it had not taken any
further steps since that time. The RPD concluded that the army and EPDP had no
real interest in the applicant.
[9]
I dismiss the argument made by the applicant
that the RPD made a number of speculative findings – notably, that it erred in
finding that the applicant was not seriously suspected of having connections
with the LTTE, in part because he was released shortly after each of his
detentions. The impugned decision has to be read as a whole. The length of the
applicant’s detention was surely a relevant factor to consider when assessing
whether the applicant was seriously suspected of having connections with the
LTTE. Besides, it was not the only factor the RPD considered, nor was it
unreasonable for the RPD to take it into account. The RPD is also allowed to
draw reasonable inferences flowing from both the documentary evidence and the
personal experience the claimants may have had with the agent of persecution,
as “[i]t is trite law that the test for persecution and
protection is forward-looking” (Martinez Giron v Canada (Minister of
Citizenship and Immigration), 2013 FC 7 at para 50).
[10]
The RPD also considered the applicant’s claim
that his attempt to seek asylum in Canada has increased his risk of
persecution, because Canada is known to be home to a Tamil diaspora that
supports the LTTE. In rejecting this submission, the RPD acknowledged that the
applicant would likely be questioned upon his return, and that “Tamils from the north and east are likely to attract greater
scrutiny.” It was open for the RPD to conclude that, notwithstanding
this evidence, the applicant would not face a “serious possibility” of
persecution, given the documents in his possession, his lack of a criminal
record, his lack of ties (or suspected ties) to the LTTE, and other aspects of
his ‘profile’. This finding is supported by the evidence. I dismiss the
argument made by the applicant that the RPD’s conclusion in this respect is unreasonable.
[11]
This brings me to the most serious ground of
reproach made in this case by the applicant.
[12]
The applicant submits that the RPD erred when it
found that the extortion faced by the applicant’s brother did not warrant
relief, in part, because “[t]he risk of extortion is
something that all persons are subject to in Sri Lanka as party members engage
in criminal activities”. This statement is directly preceded by a
statement that “[l]ike so many other Tamils, [the
applicant’s brother] was targeted for easy extortion with threats of
allegations that he was involved with the LTTE”. First, the applicant
claims that this statement is factually incorrect because Tamils are in fact disproportionately
targeted for extortion. Second, the applicant claims that the RPD erred by
implying that there is a bright line between “crime,” on one hand, and
“persecution” on the other. The fact that extortion is a crime that may be
committed, in part, for economic reasons does not preclude it from also being
an act of persecution committed, in part, based on the applicant’s ethnicity. Third,
the applicant submits that the issue of generalized risk is irrelevant for the
purposes of a section 96 (as opposed to section 97) analysis.
[13]
In Sivaraththinam v Canada (Citizenship and
Immigration), 2014 FC 162 at para 68, Justice Annis reviewed the nature of
extortion for the purposes of a personalized risk versus generalized risk
assessment under section 97 of IRPA, stating:
Extortion is by nature a personalized crime,
a fact which gives rise to some confusion in the ensuing risk analysis. When
faced with a claim of fear based on extortion, the Board must determine
whether the claimant has provided sufficient evidence to meet his onus that the
general crime of extortion in his particular circumstances presents a
sufficient risk to his life or a risk of cruel and unusual treatment to take it
outside of the risk faced by other similarly situated individuals in the
country in question, in this case, Sri Lankans who are perceived as
wealthy. This was the analysis carried out by the Member, who pointed out
that the allegations of risk raised by the applicant did not differentiate his
situation from that of any other Sri Lankan perceived as wealthy.
[Emphasis added]
[14]
In the present case, the applicant does not
claim a risk of extortion due to his status as a Sri Lankan who is perceived to
be wealthy, but rather as a Sri Lankan who is also a young Tamil male from the
north of the country. In Gunaratnam v Canada (Citizenship and Immigration),
2015 FC 358, under similar circumstances, Justice Russell addressed at length the
issue of the particularized risk of extortion faced by young Tamil males, based
on threats of denunciation as LTTE supporters, concluding that the Board had made
a reviewable error in failing to make an assessment on this basis:
[53] What is missing from the analysis, in
my view, is a consideration of the evidence from the Applicant and the US DOS
Report that it is young, Tamil males from the north who are being targeted in
this way. There is no discussion by the Board of other groups or races being
targeted in this way, and it is clear that both the EPDP and the Karuna group
are specifically targeting young, Tamil males because they can threaten them by
denouncing them as LTTE supporters to the government.
[54] This activity does not strike me as
either extortion that is without racial targeting, or a risk that is faced
generally by other individuals in Sri Lanka.
[…]
[58] I do not see how the Board was able to
conclude that this is a risk faced generally by others in Sri Lanka. The
evidence before the Board indicates that the EPDP and the Karuna group are not
targeting the Applicant solely for economic purposes. Rather, they are
targeting young, Tamil men from Jaffna because they can use the threat of
denunciation to support their extortion demands. This particular risk,
extortion with a threat of denunciation as an LTTE supporter, can only be faced
by Tamil males. So the Board needs to explain how a group targeted, at least in
part, for reasons of race can qualify for the exception under s. 97(1)(b)(ii)
of the Act.
[59] I think that this alone requires that
the matter be sent back for reconsideration. The Applicant has raised several
other issues but I do not think I need to consider all of them. The Board
reaches a fundamental conclusion that the Applicant does not fit the profile of
someone at risk from the government in Sri Lanka if he is sent back. However,
I see no full examination and discussion of the Applicant as someone who has
been detained three times and accused of LTTE connections, and who the Karuna
group has detained, beaten and threatened to report to the government as an
LTTE supporter if he does not pay the monies demanded (which he has failed
to do) (CTR at 634):
A failure to do that will result
you…telling the army that you are a supporter of LTTE and then they said that
if I were to get handed over to the army they would torture me and they would
continue to detain me.
[60] I can find nothing in the evidence to
suggest this kind of thing does not happen. The Board’s own evidence says that
those at risk include “persons suspected of having links with the LTTE.” If the
Karuna group carries through with its threat, then the Applicant will be
suspected of having such links.
[Emphasis added]
[15]
In the present case, the RPD states, at
paragraph 16 of its decision, that the applicant’s interactions with the EPDP reveal
no particularized risk: “Like so many other Tamils, he
was targeted for easy extortion with threats of allegations that he was
involved with the LTTE. This risk of extortion is something that all persons
are subject to in Sri Lanka as party members engage in criminal activities.”
Nevertheless, in arriving at this conclusion, the RPD failed to engage in any
analysis of the applicant’s particular profile as a young Tamil male in the
north of Sri Lanka in connection with the risk of extortion. While the RPD does
goes on to examine the applicant’s profile as young Tamil male in the following
section of its analysis, it does not link this analysis with its foregoing
consideration of the applicant’s risk of harm from extortion, despite
acknowledging that “Tamils are treated differently” in Sri Lanka, and, as in Gunaratnam,
that those at particular risk include “persons
suspected of having links with the LTTE” – whether “real or perceived”.
The RPD’s conclusion that the applicant did not face a particularized risk of
extortion was therefore unreasonable, as it failed to fully take into account
the applicant’s profile as a young Tamil male (see also: Pathamanathan v
Canada (Citizenship and Immigration), 2013 FC 353 at para 25).
[16]
For these above reasons, the application for
judicial review is allowed. The impugned decision is set aside and the matter
is referred back to the Board for redetermination by another panel of the RPD.
Counsel did not propose any question for certification.
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