Docket: IMM-6930-11
Citation: 2012 FC 486
Ottawa, Ontario, April 25,
2012
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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SIVATHARAN SIVAPATHASUNTHARAM
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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]
The
applicant challenges the legality of a negative decision of the Refugee
Protection Division of the Immigration and Refugee Board [RPD], dated September
2, 2011, in which the RPD refused the applicant’s claim for protection as a Convention refugee
under section 96 or a person in need of
protection under section 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]. For the reasons that
follow, the Court finds that its intervention is required in this case and
allows the applicant for judicial review.
FACTUAL BACKGROUND
[2]
The
applicant is a 34 year old Sri Lankan Tamil from the Northern Province of Sri
Lanka and alleges having a well-founded fear of persecution at the hands of the
Sri Lankan military and Tamil paramilitary groups. He is married since 2008 and
has a three year old daughter.
[3]
The
applicant alleges that during the military attack in 1995, he moved to
Kilinochchi and started working on a farm. During this time, the applicant experienced
harassment by the Liberation Tigers of Tamil Ealam [LTTE] who took portions
of his crops from his farm. The applicant alleges that he lived in fear and
like other farmers he acquiesced because the
area was controlled by armed LTTE members. He alleges that after the war broke
out between LTTE and military in October of 2008, he moved to Vavuniya because
of his medical condition (asthmatic), leaving his pregnant wife with her
parents in a
camp near Vavuniya.
[4]
The
applicant alleges that while in Vavuniya in the Vanni region, he was accused of
being involved with the Tigers, arrested, beaten and interrogated by military
forces on two occasions in February and April of 2009. Each time he was
released upon payment of a bribe after several days of detention. He alleges that
he was also abducted by the People’s Liberation Organization of Tamil Eelam [PLOTE]
militants in
June 2009.
Again, he had to pay a bribe to secure his release. The applicant’s daughter
was born in May 2009 during the peak of the war. At that time, the applicant’s
wife and daughter were detained in a camp with other Tamils who had fled the
war zone. The applicant alleges that with the help of his brother who lives in Europe, he was able
to pay the authorities to gain the release of his family. Together, they fled
to India via Colombo and arrived
in Canada on May 17,
2010.
[5]
The
applicant testified before the RPD that his brother was arrested and detained
several times by security forces since the applicant’s departure and that his
brother has also now fled the country and is claiming refugee status here in Canada. He further
testified that they both paid an agent to secure their passports and to clear
exit controls in order for them to be able to leave the country in security.
DECISION UNDER REVIEW
[6]
In
a two page decision, the RPD member found that although the applicant’s story
is credible, the determinative issue with respect to his refugee claim is the
absence of an objective basis to his fear due to the fact that the Sri Lankan
civil war is over since May of 2009 and that this constitutes a durable change.
[7]
The
RPD referred to two BBC news articles dated May 19 and April 5, 2010, to
conclude that although there are still concerns that problems could fester if
the government does not seek political accommodation with Tamil minorities, the
military defeat of LTTE is total so that there is little likelihood of an armed
conflict resuming in the near future.
[8]
The
RPD also referred to a UK Home Office information report dated February 18,
2010 (National Documentation Package, Sri Lanka, August 13, 2010, Tab 2.7),
which notes a decrease in the number of extrajudicial killings and human rights
violations in Jaffna district and in the Eastern province of Sri Lanka and
states that the military appears to have the paramilitary under control since
the end of the civil war.
[9]
In
addition, the RPD pointed out that the recent changes in the situation in the Northern
Province
have led the UNHCR to revise its Eligibility Guidelines for Assessing the
International Protection Needs of Asylum-Seekers from Sri Lanka, dated July
15, 2010. The excerpt quoted by the RPD is the following:
Given the cessation of hostilities, Sri
Lankans originating from the north of the country are no longer in need of international
protection under broader refugee criteria or complementary forms of protection
solely on the basis of risk of indiscriminate harm.
[10]
The
RPD stated that what the applicant went through happened in the climax months
of the war. Thus, in the actual circumstances, the applicant should not fear
return as he is not individually targeted for some reason other than his
general demographic profile of a Tamil male from the North. The RPD added that
the fact that the applicant holds a Sri Lankan passport with which he transited
Colombo on his way to India indicates that he is not sought by Sri
Lankan authorities.
[11]
The
RPD also added that because the applicant was never a member of a combatant
group or political organization and is now married and has a child, his profile
is now less consistent with who are most at risk (i.e. young single Tamil males
from the North) and that going forward there is no reason to believe that he
would have anything more than a mere risk of persecution in Sri Lanka.
ISSUES AND STANDARD OF
REVIEW
[12]
The
applicant challenges the legality of the RPD’s decision on two main grounds.
Although not pleaded in this order at the oral hearing, logically speaking, the
questions raised by the applicant can be summarized as follows:
·
Is
the RPD’s conclusion that there is durable change of circumstances in Sri Lanka made without
due regard to the evidence in its entirety, and therefore unreasonable?
·
Did
the RPD err in failing to determine whether the applicant had compelling
reasons arising out of previous persecution for refusing to avail himself to
the protection of his country?
[13]
It
is not disputed that since Dunsmuir v New
Brunswick,
2008 SCC 9, questions
of fact or of mixed fact and law are normally to be reviewed against the
standard of reasonableness. It follows that the Court must consider the justification,
transparency and intelligibility of the decision making process, and whether
the decision falls within a range of possible acceptable outcomes which are
defensible in light of the facts and the law: Dunsmuir,
above, at para 47; Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12 at para
59.
[14]
The standard of correctness may have been applied in pre-Dunsmuir
case law: Decka v Canada
(Minister of Citizenship and Immigration), 2005 FC 822; Nagaratnam
v Canada (Minister of Citizenship and
Immigration), 2007 FC 1208 at para 17). However, most recent
jurisprudence of this Court considers that the question of whether the RPD
erred in
failing to conduct an assessment of the compelling reasons exception under
subsection 108(4) of the IRPA involves a
question of mixed fact and law
and is to be evaluated on a standard of reasonableness (Alharazim
v Canada (Minister of Citizenship and Immigration), 2010
FC 1044 at para 25; SA v Canada (Minister of Citizenship and Immigration), 2010
FC 344 at para 22). Be that as it may, whatever standard applies here, the
Court must intervene as a result of the following analysis.
ANALYSIS
[15]
With
respect to the applicability of paragraph 108(1)(e) of the IRPA, a key
ground of attack is that the RPD failed to engage in a detailed and
comprehensive analysis of the evidence of fundamental changes in current
country conditions, as described in the UNHCR Handbook on
Procedures and Criteria for Determining Refugee Status, Geneva, January
1988, at page 31, para 135, and as required by the jurisprudence of this Court
(Tariq v Canada (Minister of Citizenship and Immigration), [2001]
FCJ 822 at para 31; Kifoueti v Canada (Minister of Citizenship and
Immigration),
[1999] FCJ 197 au
para 15).
[16]
Among
other examples, the applicant submits that the same UNHCR eligibility
guidelines to which the RPD refers in its decision, states that the situation
of Tamils in Sri
Lanka
is “still evolving” and mentions that persons suspected of having links with
the LTTE are potentially at risk:
In the immediate
post-conflict period, there have been allegations of enforced disappearances of
persons suspected of LTTE links.
[…]
Amongst issues relevant to the determination of eligibility for refugee
protection are allegations by a number of sources regarding: torture of
persons suspected of LTTE links in detention; death of LTTE suspects whilst in
custody; as well as poor prison conditions, which include severe overcrowding
and lack of adequate sanitation, food, water and medical treatment. According
to some reports young Tamil men, particularly those originating from the north
and east of the country, may be disproportionately affected by the
implementation of security and anti-terrorism measures on account of their suspected
affiliation with the LTTE.
In light of the
foregoing, persons suspected of having links with the LTTE may be at risk on
the ground of membership of a particular social group. Claims by persons
suspected of having links with the LTTE may, however, give rise to the need to
examine possible exclusion from refugee status.
[Emphasis
added]
[17]
The
Court finds that
the documentary evidence considered by the RPD and referred to in the impugned
decision is highly selective and very hastily analyzed. The conclusion that the
finding that the current circumstances of the country demonstrate a durable
change is unreasonable in view of the evidence in this specific case. This is
all the more compelling that the applicant has been accused of being involved with
LTTE forces and arrested for that reason on two occasions in 2009, and that the
RPD member does not question the credibility of his account or the fact that he
suffered personalized persecution.
[18]
The
respondent refers me to a recent decision of this Court in Selvalingam
v Canada (Minister of Citizenship and Immigration), 2012
FC 251 at paras 24-25 [Selvalingam], where it was decided that a Tamil
applicant’s encounter with the LTTE and his subsequent arrest and detention had
to be examined in the current context of political situation in Sri Lanka,
leading to the conclusion that the applicant’s risk was not prospective in that
case. However, in Selvalingam the RPD had found that the incidents
encountered by the applicant did not amount to persecution and the Court found
this finding to be reasonable in light the evidence before it. Furthermore, at
paragraph 21 of the decision, the Court specifies that the applicant was found
not to be credible by the RPD and that he was principally taking issue with the
RPD’s negative credibility findings. I find that the Selvalingam case is
clearly distinguishable from the one before us.
[19]
In
the case at bar, a review of the documentary evidence reveals that different
sources of information are less unanimous on the question of durability of
change since the end of the Sri Lankan war than what the RPD’s decision seems
to suggest. A recent Response to Information Request, dated 21 February 2011,
which can be found in the National Documentation Package, Sri Lanka, April 13,
2011, Tab. 13.1, contains information that explicitly contradict the RPD’s
finding of fact, at least in the case of someone who has previously been suspected
of being involved with and spying for the LTTE.
[20]
Some relevant excerpts of the above report read as follows:
[…] two independent research fellows and two academics maintain, in
their correspondence with the Research Directorate, that the government
continues to screen for suspected LTTE members among the Tamil population
[…]
The process used to screen persons for LTTE
affiliation, contends the International Commission of Jurists (ICJ), not only
lacks “accountability” and “transparency,” but, because it relies on
“allegations made by fellow IDPs and paramilitary groups in the internment
camps,” it also lacks “credibility”
[…]
As recently as January 2011, the Norwegian
Refugee Council’s Internal Displacement Monitoring Centre (IDMC) was saying
much the same thing when it noted that the screening process “remains unclear,”
as do the criteria for detention and release (14 Jan. 2011, 5). In fact, three
international human rights organizations point out that some of the separated
IDPs were actually forced to fight for the LTTE (ICJ Sept. 2010, 9; MRG Jan.
2011, 26; Radio Australia 9 Dec. 2009), while the MRG notes that some IDPs “had
only marginal involvement with the rebels, such as building bunkers in the last
stages of the war, cooking, nursing the wounded, etc.” (Jan. 2011, 26).
[…]
One of the two academics contacted by the
Research Directorate -- an adjunct professor of political science at
Philadelphia’s Temple University -- sees the screening process as a kind of
pre-emptive strategy, one used to discourage Tamils from pursuing “a new wave
of Tamil radicalization” (Adjunct Professor 13 Jan. 2011), while the other
fellow -- a senior fellow at the New Delhi-based Center for Land Warfare
Studies --describes it as a means to cleanse the Tamil population of any
remaining LTTE cadres (Senior Research Fellow 28 Dec. 2010).
[…]
The methods for purging the “hidden” LTTE members who the
government believes are still at large consist of “surveillance, arbitrary
arrests and random check[s],” explains the Adjunct Professor (13 Jan. 2011).
The second academic contacted by the Research Directorate, a York University
law professor who is also a member of the advisory council of the Sri Lanka
Campaign for Peace and Justice, somewhat similarly reports that Tamils
throughout the country, particularly young Tamil men in the north or east, are
being arrested and detained on suspicion of LTTE affiliation, a practice he
describes as akin to “‘ethnic’ or ‘racial’ profiling” (Professor 20 Jan. 2011).
The senior army officer reportedly told The New Yorker reporter that
the army is building large military camps in the north and gathering
intelligence with the help of spies in the Tamil population and electronic
surveillance systems (The New Yorker 17 Jan. 2011, 49).
The result of the government’s efforts to find suspected Tigers is
that screening is not limited to the IDP camps (Senior Research Fellow 28 Dec.
2010; Research Fellow 30 Dec. 2010). As the law professor explains, the
government believes that “quite a number” of prominent LTTE figures remain at
large and so is “very much on the look-out” for them (20 Jan. 2011). With the
government still concerned with separating LTTE cadres from Tamil citizens,
says the Senior Research Fellow, it is carrying out its screening in
“residential areas all over the country” (28 Dec. 2010).
[…]
The Research Fellow reports that, within Sri Lanka, the army and
paramilitary groups are checking vehicles and houses in the Northern Province for LTTE members and
supporters (Research Fellow 30 Dec. 2010). The Adjunct Professor likewise
indicates that screening is primarily focused on Tamils in the Northern and
Eastern provinces (13 Jan. 2011).
According
to the Research Fellow, screening is also being carried out at the airport (30
Dec. 2010). The law professor similarly says that he has it on good authority
that the government is using “captured LTTE leaders as spotters at both the
passport office in Colombo and at the airport” (20 Jan.
2011). He reports that the government is “routinely ‘interview[ing]’” returned
Tamil asylum seekers and, on what is “likely minimal standard[s],” arresting
and detaining any who are suspected of being affiliated with the LTTE
(Professor 20 Jan. 2011). He adds that Tamils flying into the Colombo airport who are not failed asylum
claimants or deportees are also being “randomly screened and interrogated”
(ibid.)
[21]
Similarly,
a Danish Immigration Service report on human rights and security issues concerning Tamils in Sri
Lanka (19 June to 3 July 2010), found at National Documentation Package,
April 13, 2011, Tab. 2.5, also indicates that the presence of military forces
throughout the North remains significant and that the government has put in
place a registration system for Tamil residents in some
parts of Colombo where the Tamil concentration in the population is high. The report
indicates that the
registration requirement is being applied in a discriminatory fashion
exclusively to those of
Tamil origin and has been accompanied by reports of search operations.
[22]
It
is apparent that the RPD failed to include the more recent documentary evidence
from the April 2011 and August 2010 versions of the National Documentation
Package that was made available to it at the time of the hearing. Yet, the
jurisprudence is clear that it is incumbent on the RPD to examine the most
recent sources of information in assessing the evidence even in cases where the
updated country reports are not filed by the applicant (Hassaballa
v Canada (Minister of Citizenship and Immigration), [2007] FCJ 658 at
paras 33-35; Jessamy v Canada (Minister of Citizenship and
Immigration),
2009 FC 20 at para 81).
[23]
In
passing, the applicant states that he also filed other documentary evidence
consisting of several newspaper/internet articles excerpts as well as a DVD on
recent events of attacks on Tamils by Sri Lankan security forces. The RPD
member refused to watch the DVD even though prior arrangements had been made
for the applicant to be able to present this evidence at the hearing. The RPD
member stated that he will take the time to watch the DVD after the hearing.
However, the impugned decision also completely ignores the evidence submitted by
the applicant which is most relevant since it apparently involves members of
the applicant’s family as well.
[24]
In
coming to the conclusion that the impugned decision is unreasonable, I am
mindful of the argument made by the respondent that the fact that the RPD
reasons do not canvass every piece of evidence does not indicate that the
decision maker did not consider these documents and is generally not fatal to
its final decision. However, this is a rebuttable presumption (Florea
v Canada (Minister of Employment and Immigration), [1993]
FCJ 598) and the RPD
had an obligation to address this important contradictory evidence that
directly contradicts its findings of fact (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ 1425, at
para 17). Thus, at the very least, the RPD had to acknowledge and explain why
this negative evidence on the durability and effectiveness of the defeat of
LTTE and the end of the Sri Lankan civil war is rejected or deemed irrelevant.
[25]
At
the risk of repeating myself, the apparent contradictions or cautionary remarks
in the documentary evidence was sufficiently significant and relevant to
require a more thorough weighing by the RPD when deciding whether in his
specific circumstances, the applicant could encounter a personalized risk of
persecution upon return to Sri Lanka. I therefore find that the RPD’s finding
that the applicant was not at risk of further attacks was unreasonable in
the circumstances. While
this error is determinative, I am of opinion that the RDP also erred in failing
to proceed with a proper analysis of the compelling reasons exception pursuant
to subsection 108(4) of the IRPA. It has not
been really challenged by the Minister that the obligation to conduct an
analysis under subsection 108(4) of the IRPA is a precondition to the dismissal
of a refugee claim on the ground that, pursuant to paragraph 108(1)(e), the
reasons for which the person sought refugee have ceased to exist, whether this
has been raised or not by the claimant (Yamba v Canada (Minister of Citizenship
and Immigration), [2000] FCJ 457 at para 6 (FCA)).
[26]
The
issue is whether, considering the totality of the situation, compelling
circumstances which are linked to past persecution warrant that the claimant be
granted refugee status despite a change of circumstances. The
decision, as all decisions of a compelling nature, necessitates the view that
it is the state of mind of the refugee claimant that creates the precedent -
not necessarily the country, the conditions, nor the attitude of the population,
even though those factors may come into balance (Suleiman v Canada
(Minister of Citizenship and Immigration), 2004 FC 1125 at paras 15-21).
[27]
Not
only the compelling reasons exception was formally raised by the applicant
(transcripts of the hearing, tribunal record at pages 209, 210, 214, 216 and
252), but the fact that the applicant would not be personally targeted today –
which is a debatable issue as found above – is an irrelevant consideration in
an analysis under subsection 108(4) of the IRPA. Although the RPD member
considered the applicant credible, and thus, implicitly accepted that he had
been persecuted in his country, it failed to make an assessment under
subsection 108(4) of the IRPA. Even if one accepts that the changes are
durable, this error renders the whole decision unreasonable (Gorria v Canada (Minister of
Citizenship and Immigration), [2000] FCJ 457, 254 NR 388 at para 6
(FCA)). This constitutes further ground to set aside the impugned decision and
refer the matter back to the RPD for reconsideration by a differently
constituted panel.
[28]
For
these reasons, the present application for judicial review shall be allowed. No question of general importance has been stated by counsel and none
shall be certified.
JUDGMENT
THIS COURT’S
JUDGMENT is that the
application for judicial review is granted. The impugned decision is set aside
and the
matter is
remitted back to the Refugee Protection Division of the
Immigration and Refugee Board for reconsideration by a differently constituted
panel. No question of general importance is certified.
“Luc
Martineau”
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