Date:
20121206
Docket:
IMM-1500-12
Citation:
2012 FC 1435
Ottawa Ontario,
December 6, 2012
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
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JANARTHANAN VAITHIYANATHA IYER
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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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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act] of a decision rendered
by the Refugee Protection Division of the Immigration and Refugee Board of
Canada (Board) on January 10, 2012, in which it found that the applicant was
neither a Convention refugee nor a person in need of protection under sections
96 and 97 of the Act.
Factual
Background
[2]
Mr.
Janarthanan Vaithiyanatha Iyer (the applicant) is a thirty-one (31) year old
citizen of Sri Lanka and is of Tamil ethnicity. The applicant is a Hindu priest
who finished his studies in 2000. He alleges that he initially worked at the Nagapusani Amman Temple in Vaddukoddai until 2004, after which he began working at the Sari Marugan Temple, Torrington place in Colombo. The applicant worked at that temple until
March 2009 when a next door neighbour was allegedly taken in a white van,
prompting the applicant to move back to his native place of Vaddukoddai, Jaffna.
[3]
The
applicant’s uncle was allegedly shot on December 11, 2010 by the Criminal
Investigation Department (CID) and the Eelam People’s Democratic Party (EPDP)
on allegations that he was a supporter of the Liberation Tigers of Tamil Eelam
(LTTE). The applicant claims to have been very close to his uncle’s youngest
son and to have visited his uncle at the hospital and helped out with the
funeral.
[4]
A
few days following the applicant’s uncle’s shooting, three (3) masked men
allegedly came to the applicant’s house and called his name, accusing the
applicant of working for the LTTE and demanding money. The applicant’s mother
allegedly pleaded the men to leave and told them a portion of the amount of
money they demanded could be given the following day. The men agreed and told
the applicant to bring the money to a restaurant. The applicant met with the
men the following day to give the money. He was allegedly threatened and told
that he would be treated as an LTTE supporter and shot if he remained in
contact with his late uncle’s family. Following the meeting in the restaurant,
the applicant allegedly began receiving threatening phone calls.
[5]
Fearing
for his life, the applicant decided to leave Jaffna and travel to Colombo. The applicant fled Sri Lanka on December 24, 2010. The applicant arrived in Canada on January 11, 2011. Upon his arrival in Canada, the applicant applied for refugee
protection.
[6]
The
applicant claims that after his departure, CID individuals went to his parents’
home asking for him. When his parents told them he had gone abroad, they
allegedly requested that the applicant report to them upon his return.
The Impugned
Decision
[7]
The
applicant’s hearing was held on December 21, 2011. A negative decision was
rendered by the Board on January 10, 2012 whereby it determined that the
applicant did not have a well-founded fear of persecution for a Convention
ground in Sri Lanka, nor was he a person in need of protection pursuant to
sections 96 and 97 of the Act.
[8]
The
Board made several adverse findings with regards to the applicant’s credibility
and concluded that the applicant did not establish that he was wanted in the
past or currently by the CID or EPDP as he alleged. The Board noted that the
applicant omitted to mention in his personal identification form (PIF), but
testified at the hearing, that he was allegedly held at army checkpoints for
questioning about Tiger support in 2006, but was always released after a brief
period of time (under one and a half hours). The Board determined, and the
applicant agreed, that he would not have been released this way if the
authorities had not been satisfied that he was not a Tiger supporter.
[9]
The
Board further noted that the applicant visited Singapore in October 2010, and
chose to return to Sri Lanka when his visa no longer authorized him to stay in Singapore instead of going to another country. The Board concluded that the applicant had
failed to credibly establish that he was targeted in the past for being a young
Tamil male.
[10]
The
Board also drew a negative inference from the fact that the applicant did not
obtain letters to prove he was living in the north of the country in December
2010 when his uncle was shot, and that the applicant’s residence is material to
the claim. The Board also drew an adverse inference from an omission in the
applicant’s PIF that his uncle’s shooting had been reported in the news, a fact
he mentioned in his oral testimony, and the applicant’s failure to obtain
reports confirming the shooting. The Board also noted that the only indication
as to the motive of the uncle’s alleged shooting was town “talk”. The Board
found that, in the absence of any supporting documents, it could not conclude
that the applicant’s uncle was shot by the CID and EPDP.
[11]
Also,
the Board did not accept on a balance of probabilities that only the applicant,
and no other member of his family, would be targeted by the CID and EPDP for
having gone to the hospital and to the funeral. The Board noted in paragraph 13
of its decision that four (4) of the applicant’s five (5) siblings are still
living in the north of Sri Lanka without problems.
[12]
The
Board indicated that the applicant was unable to explain why his home was
visited by masked men asking for money, yet the same men met him in the
restaurant the following day, unmasked, to collect the money. The Board also
found that if indeed the applicant was visited by masked men and forced to pay
a sum of money, and the applicant obliged, there would not be more than a mere
possibility that he would be approached again upon returning to Sri Lanka. Not
believing that the applicant is being pursued by the CID or the EPDP, the Board
gave no weight to the applicant’s mother’s letter which stated that the CID had
come looking for him (Tribunal Record, pp 175-76).
[13]
The
Board found that the information the applicant provided in his PIF was
inconsistent with the information provided to Citizenship and Immigration
Canada (CIC) upon his arrival (Tribunal Record, p 156) with regards to his
reasons for leaving Sri Lanka and drew an adverse inference from these
inconsistencies as well. Namely, on the CIC form, he did not indicate that
masked men demanded money from him, he did not indicate that his uncle was shot
for alleged support to the LTTE, nor that he received threatening phone calls.
The Board found the omission of the demand and payment of the sum of money was
material, and found it may have been added later to bolster his claim.
[14]
The
Board took note of an inconsistency with the applicant’s claim of the CID’s
interest in him: in his narrative, dated January 24, 2011, he stated that his
parents “recently” called him and told him the CID was looking for him
(Tribunal Record, p 28, lines 50-52), whereas his mother’s letter dated October
25, 2011, claims that the CID was there looking for him around October 19, 2011
(Tribunal Record, p 175). Upon questioning, the applicant said the PIF
information was incorrect. An adverse inference was drawn from this as a visit
from the CID was seen as an important event that would be properly recalled.
[15]
The
Board also noted that the applicant was not forthright with the events
surrounding his arrival at the airport, initially saying he had been arrested
and his passport taken, only to finally confirm that he had given his passport
when asked and that he was not arrested, but asked questions by an Immigration
officer.
[16]
The
Board considered objective evidence of country conditions. It noted that Sri Lanka continues to experience problems despite the May 2009 defeat of the Tamil Tigers.
The Board stated the test was forward-looking, and that there were no reports
on remaining groups of the LTTE in the north after the war. The Board noted
from a July 2010 UNHCR report that there is no longer a presumption of eligibility
for Tamils from the north; that restrictions on movements of displaced persons
were lifted, although military and police checkpoints are still present; the
country had largely peaceful elections; and there was a reduction in Sri
Lankans seeking international protection. It concluded that in the applicant’s
circumstances, his fear of persecution was not well-founded because his profile
does not put him at risk.
[17]
The
Board also assessed the risk to the applicant pursuant to section 97 of the
Act, recalling that section 97 requires a personalized risk. The Board held
that the risk faced by the applicant, if any, was a risk of general violence
and criminality.
Issues
[18]
The
applicant raises the following issues before this Court:
a. Was
there a breach of procedural fairness?
b. Did
the Board err in making improper credibility findings?
c. Did
the Board err in failing to consider all of the relevant case-specific
documentary evidence?
Standard of
Review
[19]
Issues
of procedural fairness are reviewable on the standard of correctness (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]). On the
other hand, issues pertaining to the Board’s assessment of credibility and
evidence are reviewable on a standard of reasonableness since they are within
his expertise (Aguebor v Canada (Minister of Employment and Immigration)
(FCA), (1993), 160 NR 315, 42 ACWS (3d) 886; Canada (Minister of Citizenship
and Immigration) v Khosa, 2009 SCC 12 at para 58, [2009] 1 S.C.R. 339; Dunsmuir,
above).
Analysis
[20]
On
the first issue, the applicant alleges a breach in procedural fairness because
the Board did not allow him to address the doubts he had pertaining to his
credibility by bringing all inconsistencies to his attention for comment.
[21]
The
Court finds that there was no breach of procedural fairness. In the present
case, the Board indicated from the beginning that credibility would be at issue
(Tribunal Record, p 185). Furthermore, the applicant was directly questioned on
many of the adverse credibility findings, for instance: the events at the
airport (Tribunal Record, p 186-87), his lack of effort for obtaining a report
of his uncle’s shooting or news reports pertaining to that incident (Tribunal
Record, p 197), the men coming to his home masked and meeting him unmasked the
following day (Tribunal Record, p 207). Although some of the inconsistencies
may not have been put to the applicant, it does not amount, in these
circumstances, to a material and significant issue.
[22]
The
applicant also argues that the credibility findings were unreasonable and
warrant this Court’s intervention. Namely, he argues that the Board engaged in
baseless inferences and findings of implausibility, as well as a microscopic
review of the evidence.
[23]
The
Court notes that in Samseen v Canada (Minister of Citizenship and
Immigration), 2006 FC 542, [2006] FCJ No 727 (QL), Justice Pinard observed
at para 10 that “[…] it is reasonable for the Board to doubt the truthfulness
of an account when an applicant fails to mention important facts in his PIF but
subsequently adds them in his oral testimony […]”. While inconsistencies
between the port of entry notes and the PIF are to be taken cautiously because
of the manner in which port of entry notes are taken, the PIF is filled out
later when the applicant can take the time to relate all relevant facts
pertaining to his claim. In the present case, the applicant omitted to include
in his PIF that he was allegedly detained at army checkpoints in 2006. There is
also an important inconsistency between the PIF and the applicant’s mother’s
letter presented at the hearing with regards to the date at which the CID
allegedly went looking for the applicant at his home. These are important facts
in the applicant’s claim, and it was open to the Board to doubt the veracity of
the CID’s interest in the applicant due to this inconsistency.
[24]
It
was also reasonable for the Board to draw a negative inference from the fact
that the applicant provided no documentary evidence whatsoever of his uncle’s
alleged shooting and motives behind the said shooting. The Court recalls that,
pursuant to Rule 7 of the Refugee Protection Division Rules,
SOR/2002-228, it is incumbent on the applicant to provide documents to
establish his claim. In the present case, there is absolutely no documentary
evidence to corroborate the applicant’s uncle’s death, which is a very
important event in the applicant’s refugee claim. There is also no evidence of
the applicant’s employment as a priest. Lack of effort in obtaining such
important documents can reasonably result in a negative finding of credibility
(Samseen, above, at para 30).
[25]
Furthermore,
the Court finds that the inference as to implausibility that masked men would
threaten the applicant only to reveal their identities the following day is
logical, reasonable and adequately based on the applicant’s testimonial
evidence. Given the deference due to the Board in terms of credibility
findings, and the Board’s reasons outlining several important issues with
credibility, the Court is not to intervene and finds the Board’s assessment of
credibility reasonable in the circumstances.
[26]
On
the third and final issue, the applicant argues that even if he is found not to
be credible, he could still be found to be a refugee (Attakora v Canada
(Minister of Employment and Immigration) (FCA), (1989), 99 NR 168, [1989]
FCJ No 444 (QL)). While it is true that a non-credible witness could still be
found to be a refugee if other elements of the claim permit it, it is not so in
this case. A finding of lack of credibility on several material facts of the
applicant’s case (namely, that the CID and EPSP are behind his uncle’s alleged
shooting, that the CID is looking for him, and that he resided in the north)
make it difficult to conclude that he is a refugee or a person in need of protection.
It remains the applicant’s responsibility to demonstrate how risks identified
in general country conditions documents relate to him personally (Selvalingam
v Canada (Minister of Citizenship and Immigration), 2012 FC 251, [2012] FCJ
No 274 (QL); Ventura v Canada (Minister of Citizenship and Immigration),
2010 FC 871 at para 25, [2010] FCJ No 1079 (QL)). In the case at bar, following
the adverse credibility findings, what remained was the fact that the applicant
is a thirty-one (31) year old Tamil male.
[27]
The
applicant submits that the Board was selective in his reliance on the
documentary evidence by ignoring relevant information. The Court cannot agree.
The Board consulted a recent document from the UNHCR to examine the risks
associated with such a profile. The Board did note that the situation in Sri Lanka is still evolving, but outlined several findings indicating a marked improvement
since the defeat of the Tamil Tigers. The applicant points to selected excerpts
purported to support his argument that the Board engaged in a selective review
of the documentary evidence. However, the excerpts the applicant points to are
of little relevance to his particular situation: one concerns the Tamils from
Vanni - whereby the applicant relocated in Jaffna (Tribunal Record, p 26) - and
the relocation in the city of Colombo (Danish Report, Tribunal Record, pp
101-02). Two (2) other specifically concern individuals suspected of having
links to the LTTE, which has not been established in the applicant’s case
(UNHCR Report, Tribunal Record, pp 61-63; Applicant’s Application Record, p
189-190).
[28]
Madam
Justice Bédard reiterated in Selvalingam, above, that the mere fact of
being a young Tamil male from the North is insufficient to be considered a
person in need of protection or a Convention refugee. The Court is satisfied
that the Board has not ignored evidence that goes directly against its finding
(Cepeda-Guttierez v Canada (Minister of Citizenship and Immigration) (1998),
157 FTR 35, [1998] FCJ No 1425 (QL)). Absent such an omission, the Board is not
required to refer to every piece of evidence presented before him.
[29]
The
Court is satisfied that the Board’s decision is justified and falls within one
of the acceptable outcomes defensible in light of the facts of this case and
the law (Dunsmuir, above, at para 47). The Court’s intervention is not
warranted.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed. No question is certified.
“Richard Boivin”
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