Date: 20050915
Docket: IMM-980-05
Citation: 2005 FC 1269
Vancouver, British Columbia, Thursday, the 15th day of September 2005
Present: THE HONOURABLE MR. JUSTICE ROULEAU
BETWEEN:
MUSTHAQ MOHAMED MOHAMED KIYARATH
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for leave and judicial review, under s. 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated January 24, 2005. In the decision, the Board found that the applicant was not a Convention refugee or a person in need of protection. The primary issues on which the Board found that the applicant was not a Convention refugee or a person in need of protection were plausibility and lack of objective basis for the applicant's fear in Sri Lanka.
Background
[2] The applicant is a 24-year-old citizen of Sri Lanka. He came to Canada in January 2003 on a student visa. He made a refugee claim for protection in July 2003, on the basis that he feared to return to Sri Lanka, because he would be targeted by the Liberation Tigers of Tamil Eelam (the "LTTE").
[3] The applicant's fears are based on events that occurred after he came to Canada. The applicant claims that his father, who travels back and forth between Jaffna and Colombo for work, was approached by the LTTE. The LTTE demanded money from the applicant's father's business as a tax. His father opposed the payment and argued with the LTTE. The applicant claims that his father refused to pay and tried to organize other business people to refuse payments as well.
[4] The applicant claims that the LTTE threatened his father, and his whole family, because of the refusal to pay. He claims his father subsequently disappeared in Jaffna and no one has heard from his since. The applicant does not know where his father is and has not been contacted by the people who took him.
[5] After his father's disappearance, the applicant's uncles heard that the LTTE were looking for them in Jaffna as they were associated with the applicant's father's business. The uncles fled to India after selling their business. The applicant claims that his mother and brothers have gone into hiding in Colombo, and one of his brothers has moved to Saudi Arabia.
[6] The applicant claims that he cannot return to Sri Lanka because he fears the LTTE. He claims that he cannot go to the police in Sri Lanka because the police cannot protect people from the LTTE.
Decision Under Review
[7] The Board had difficulty with two major components of the applicant's claim: plausibility and the lack of objective fear based on the country documentation.
[8] The Board found that the applicant would be considered a very low level person to the LTTE at most. The Board notes that the applicant himself played no role in his father's dispute with the LTTE in Jaffna, as he was in Canada on a student visa when the dispute occurred. The Board follows the argument and concludes that the only connection the applicant has to the LTTE is his father, who has now disappeared. The Board also notes that the applicant's uncles, who operated businesses in Jaffna, have fled to India. However, the Board concludes that the applicant and his mother and brothers had "virtually no connection to those activities," to wit the refusal to pay the "tax".
[9] The Board finds that the LTTE has apparently removed its primary opponent, the applicant's father, and has driven his uncles out of Sri Lanka. The Board finds it implausible that the LTTE would pursue the applicant as he was not directly involved in the dispute and was not even in Sri Lanka at the time it occurred.
[10] The Board goes on to discuss the country documentation and the applicant's objective fear. The Board finds that the country documents do not provide support for the argument that the applicant would be at risk of serious harm in Colombo. The Board does note that there are country documents suggesting that the applicant may be at risk in the north and northwest of Sri Lanka, but the evidence does not refer to the targeting of low level people in central and south Sri Lanka. The Board notes that there have been reports of attacks on high profile targets in central and southern Sri Lanka, but there is no evidence that low profile people are targets. The Board re-iterates that the applicant is a low profile person.
[11] The Board finds, on the documentary evidence, that the applicant faces less than a serious possibility of persecution should he be returned to Sri Lanka.
Issues
[12] The applicant submits that the Board based its decision on an erroneous finding of fact in making a plausibility finding based on speculation and unreasonable inferences.
[13] The applicant also alleges that the Board erred in its analysis of the objective documentary evidence.
Argument
[14] The applicant argues that, while the Board does consider the documentary evidence in the decision, the Board reduces its analysis to pure speculation in the final finding and fails to consider the applicant's personal situation in light of the documentary evidence. The applicant argues that while the Board can make reasonable findings based on implausibility, common sense and rationality, the Board must provide adequate reasons to support the finding (see RKL v. Canada (Minister of Citizenship and Immigration), 2003 FCT 116, [2003] F.C.J. No. 162 at paragraph 10). The applicant contends that the Board failed to do so in the present matter.
[15] The applicant submits that the Board found that his father and his uncles were persecuted by the LTTE and therefore cannot dismiss his subjective fear without valid reasons, which he claims the Board did not provide. In addition, the applicant notes that the implausibility must be considered in the context of Sri Lanka and not judged by Canadian standards (see RKL supra, at para 12, and Giron v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 481 (FCA)).
[16] The applicant claims that the Board failed to consider that he is a member of a distinct minority, a Tamil speaking Muslim. Muslims make up less than ten per cent of the Sri Lankan population.
[17] The applicant goes on to argue that the Board failed to consider all of the documentary evidence, as well as the applicant's testimony, in assessing the claim. The applicant claims that the Board ignored his family situation and opposition to the LTTE.
[18] The respondent argues that the Board did not make a reviewable error in law and conducted a thorough and proper analysis of the applicant's claim. The respondent notes that the Board is entitled to make implausibility findings, based on common sense and rationality, as long as its reasons are set out in clear and unmistakeable terms (Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 at para 4). The respondent argues that the Board's finding are owed a high amount of deference.
[19] The respondent summarizes the Board's findings by arguing that the conclusion was based on the fact that the Board found it implausible that the applicant himself had attracted the attention of the LTTE, as he was not involved in the dispute in Sri Lanka and was also not involved in any of the activities that led to the dispute.
[20] The respondent also submits that the Board considered all the evidence, both oral and documentary, in making its decision regarding the objective basis for the applicant's claim. The respondent argues that the decision was reasonable on the evidence before the Board.
Analysis
[21] I am of the opinion that the Board's decision was reasonable in both respects for the reasons that follow.
[22] The Board can make reasonable findings on common sense, rationality and implausibility, as long as the Board sets out clear reasons for making the implausibility finding (RKL, supra at para 12). In the instant case, the Board's key reason for the implausibility finding was bifurcated: (i) the applicant was not involved in the dispute between the LTTE and his father/uncles nor in any of the activities leading up to the dispute; and (ii) the applicant was in Canada at the time the dispute occurred.
[23] I will expand briefly on why each of the Board's reasons for the implausibility finding is valid. First, the applicant has provided no evidence that the LTTE has targeted him personally. He has argued that his father and uncles have been targeted, but has not alleged that he was involved in any of the activities leading up to the dispute, or in the dispute itself. Since he was not involved, the Board's finding that it is implausible that the LTTE is after the applicant is reasonable.
[24] The applicant was in Canada at the time of the dispute, attending school on a student visa. He now makes a sur place claim based on the dispute between the LTTE and his father. He claims that his mother and brothers were forced to go into hiding in Colombo. However, he provides no evidence to show that the LTTE have targeted his family, other than his father. In addition, he has no evidence that he will be targeted upon his return as he has been in Canada throughout the activities and the dispute. I am of the opinion that the Board's finding of implausibility is reasonable on the ground that the applicant was in Canada when the dispute occurred. I do not find sufficient ground for a sur place claim.
[25] In RKL, supra, the Court noted the following at paras 8-10:
[8] Moreover, it has been recognized and confirmed that, with respect to credibility and assessment of evidence, this Court may not substitute its decision for that of the Board when the applicant has failed to prove that the Board's decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it: see Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296 at para. 14 (QL) (T.D.) ("Akinlolu"); Kanyai v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1124 at para. 9 (QL) (T.D.) ("Kanyai"); and the grounds for review set out in paragraph 18.1(4)(d) of the Federal Court Act.
[9] Normally, the Board is entitled to conclude that an applicant is not credible because of implausibilities in his or her evidence as long as its inferences are not unreasonable and its reasons are set out in "clear and unmistakable terms": see Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.); Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.) ("Aguebor"); Zhou v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1087 (QL) (C.A.); and Kanyai, supra, at para. 10.
[10] Furthermore, the Board is entitled to make reasonable findings based on implausibilities, common sense and rationality: see Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 at para. 2 (QL) (C.A.); and Aguebor, supra, at para. 4. The Board may reject uncontradicted evidence if it is not consistent with the probabilities affecting the case as a whole, or where inconsistencies are found in the evidence: see Akinlolu, supra, at para. 13; and Kanyai, supra, at para. 11.
[26] In the present case, I am satisfied that the Board made a reasonable decision and set out its decision in clear and unmistakable terms. As per RKL supra this Court should not interfere with a reasonable decision set out in clear and unmistakable terms. The Board's decision on plausibility was reasonable and the application for judicial review should be dismissed.
[27] Although there is no need to discuss the finding of objective fear, given that the plausibility finding was reasonable and that the objective fear was an alternative finding, I will note that this Court has addressed the notion of objective fear, or state protection, in Sri Lanka recently, in Mosley J's decision in Niyas v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 396 (FC) at para 16-17:
[16] The respondent submits that the Board is presumed to have considered all of the documentary evidence. It need not mention every piece of evidence. The applicant is really complaining about the weighing of evidence: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.); [1973] S.C.R. 102=">Ilre v. Canada (Minister of Citizenship and Immigration), [1973] S.C.R. 102; Brar v. Canada (Minister of Employment and Immigration) (1993), 152 N.R. 157 (F.C.A.).
[17] Though the documentary evidence shows that the LTTE continued to commit terrorist acts after the cease-fire, there was a major improvement and it was open to the Board to find that it was unlikely that the applicant would be a target. He was from Colombo. His brothers were not targeted. He did not fit the profile of someone who would be abducted by the LTTE. The conclusion was open to the Board.
[28] As in Niyas, the conclusion that the applicant did not fit the profile of someone who would be targeted in central or southern Sri Lanka was open to the Board. The Board considered all the documentary evidence and made a reasonable decision regarding the objective fears of the applicant.
[29] As both the plausibility finding and the finding regarding objective fear were reasonable, the application for judicial review should be dismissed.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed.
(Sgd.) "P. Rouleau"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-980-05
STYLE OF CAUSE: MUSTHAQ MOHAMED MOHAMED KIYARATH
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: September 13, 2005
REASONS FOR ORDER AND ORDER: ROULEAU J.
DATED: September 15, 2005
APPEARANCES:
Ms. Nicole Hainer FOR APPLICANT
Mr. Jonathan Shapiro FOR RESPONDENT
SOLICITORS OF RECORD:
Elgin, Cannon & Associates FOR APPLICANT
Vancouver, BC
Mr. John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, ON
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