Date:
20120704
Docket:
IMM-7725-11
Citation:
2012 FC 843
Ottawa, Ontario, July 4, 2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
|
|
PUSHPARAJAH SUBRAMANIAM
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant seeks judicial review of a decision of the Refugee
Protection Division of the Immigration and Refugee Board of Canada (the Board), dated October
12, 2011, which found that the applicant was not 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 (IRPA). For the
reasons that follow, the application is granted.
Facts
[2]
The
applicant, Pushparajah Subramaniam, is a Tamil citizen of Sri Lanka. He states that he and his family suffered persecution and extortion for many years by
the Liberation Tigers of Tamil Eelam (LTTE), and the Sri Lankan army. His
brother fled to England in 2006 after he was accused of supporting the LTTE.
[3]
The
applicant states that he was arrested by the army in August 2007 and accused of
giving money to the LTTE. He was beaten and interrogated, and was released
after his wife paid a bribe.
Decision Under Review
[4]
After
reviewing the applicant’s allegations, the Board found that the applicant’s
fear of persecution was not well-founded, based on credibility concerns. The
Board found in the alternative that there was a change in circumstances in Sri Lanka and further found that the risk alleged by the applicant was a generalized risk.
Credibility
[5]
The
Board noted that the two incidents of detention experienced by the applicant
ended in his being released, albeit through the payment of bribes. The Board
also noted that the applicant was not stopped by security forces when entering Colombo or confronted by them during his stay there. He also had no problem leaving the
country, albeit with the help of an agent. Based on all these factors the
Board found that there was no warrant for the applicant’s arrest and he was not
on the “security watch list” of the security forces, leading the Board to
conclude that his fear of persecution is not well-founded.
[6]
The
Board also drew a negative inference from the fact that the applicant stated in
his Personal Information Form (PIF) that he had stayed with his agent in Colombo, but at the hearing he said he stayed with a distant relative of his wife.
Change of Circumstances
[7]
The
Board found that if credibility was not determinative, the change of
circumstances would be. The Board cited section 108(1)(e) of the IRPA which
states that a refugee claim will be rejected if “the reasons for which the
person sought refugee protection have ceased to exist.” The Board noted that
whether there is a change of circumstances is a factual determination and the
durability, effectiveness and substantiality of the change are relevant. The
Board also noted the Court of Appeal’s decision in Fernandopulle v Canada (Minister of Citizenship and Immigration), 2005 FCA 91, which found that past
persecution does not create a legal presumption of future persecution.
[8]
The
Board acknowledged that many Tamils faced persecution by the LTTE, Sri Lankan
security forces and paramilitary groups. The Board found that, based on the
applicant’s circumstances, and the evidence of the current situation in Sri Lanka, it is less than likely that he will be harmed pursuant to section 97 of the IRPA.
[9]
The
Board noted the evidence that, due to the significant improvements in the
security of Sri Lanka there is no longer the need for group-based protection
for Tamils but rather claims should be assessed based on certain risk profiles
such as those with suspected LTTE links. The Board also cited evidence that:
a. Check points were being removed;
b. Refugees were returning to Sri Lanka in large numbers;
c. Some former LTTE members have
been detained or disappeared, but other evidence suggests that former LTTE
members have been rehabilitated and reintegrated (although there are reports of
insufficient assistance in reintegration);
d. Security problems in the north
have significantly decreased;
e. Tourism in the north has
increased;
f. There are remaining police
problems, including corruption and a lack of police that speak Tamil, but the
government is aggressively recruiting Tamil-speaking police officers;
g. Beating and torture of detainees
during interrogation was common, but there was conflicting evidence about the
severity of the torture; and
h. There is some indication that
returnees face scrutiny, but the more reliable evidence was that only those
with warrants for their arrest or suspected LTTE links are at risk upon return.
[10]
The
Board concluded that the changes are durable and meaningful in so far as the
applicant is concerned and therefore the applicant does not face persecution or
risk under sections 96 and 97 of the IRPA.
[11]
The
applicant’s claim was therefore refused.
Standard of Review and Issue
[12]
The
determinative issue in this application is whether the Board erred by failing to
consider section 108(4) of the IRPA. While there has been some
disagreement on the appropriate standard of review for this question, the
Federal Court of Appeal’s reasoning in Yamba v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 457 (CA), suggests a
correctness standard. The Board is obligated to consider section 108(4) in
every case in which it finds changed circumstances under section 108(1)(e). Thus,
while any conclusion reached under section 108(4) would be reviewed on a
standard of reasonableness, there is no deference in whether to consider
section 108(4).
Analysis
[13]
While
the applicant raises several alleged errors by the Board, in my view the
application can be determined solely based on the Board’s analysis of whether
there are changed circumstances in Sri Lanka such that the reasons for
protection have ceased to exist, pursuant to section 108(1)(e) of the IRPA.
[14]
The
respondent argues that credibility was determinative of the application.
However, the Board’s credibility finding was that it did not believe the
applicant was currently on a watch list or wanted by the authorities. As the
applicant submits, he did not allege that he was currently wanted by police;
rather, he feared persecution based on his past experiences of persecution by
security forces and militant groups. The Board did make one negative
credibility finding regarding an inconsistency in the applicant’s testimony but,
reading the Board’s reasons as a whole, the determinative finding was that the
applicant does not fit any of the current risk profiles due to the change of
circumstances in Sri Lanka.
[15]
In
my view, the Board erred when, having found changed circumstances under section
108(1)(e), it failed to consider the “compelling reasons” exception under section
108(4) of the IRPA. The relevant portions of section 108 state:
|
Rejection
108.
(1) A claim for refugee protection shall be rejected, and a person is not a
Convention refugee or a person in need of protection, in any of the following
circumstances:
[…]
(e)
the reasons for which the person sought refugee protection have ceased to
exist.
[…]
Exception
(4) Paragraph (1)(e) does not
apply to a person who establishes that there are compelling reasons arising
out of previous persecution, torture, treatment or punishment for refusing to
avail themselves of the protection of the country which they left, or outside
of which they remained, due to such previous persecution, torture, treatment
or punishment.
|
Rejet
108. (1) Est rejetée la demande d’asile et le
demandeur n’a pas qualité de réfugié ou de personne à protéger dans tel des
cas suivants :
[…]
e) les raisons qui lui ont f
ait demander l’asile n’existent plus.
[…]
Exception
(4) L’alinéa (1)e) ne
s’applique pas si le demandeur prouve qu’il y a des raisons impérieuses,
tenant à des persécutions, à la torture ou à des traitements ou peines
antérieurs, de refuser de se réclamer de la protection du pays qu’il a quitté
ou hors duquel il est demeuré.
|
[16]
There
is no question that the Board found that the reasons the applicant sought
refugee protection have ceased to exist, pursuant to section 108(1)(e). Therefore,
as mandated by the Court of Appeal in Yamba, the Board was obligated
pursuant to section 108(4) (section 2(3) under the previous Act) to consider
whether there were compelling reasons due to the past persecution and torture
of the applicant, not to apply section 108(1)(e). The Court of Appeal stated
in Yamba, at paragraph 6:
In
summary, in every case in which the Refugee Division concludes that a claimant
has suffered past persecution, but this has been a change of country conditions
under paragraph 2(2)(e), the Refugee Division is obligated under subsection
2(3) to consider whether the evidence presented establishes that there are
"compelling reasons" as contemplated by that subsection. This
obligation arises whether or not the claimant expressly invokes subsection
2(3). That being said the evidentiary burden remains on the claimant to adduce
the evidence necessary to establish that he or she is entitled to the benefit
of that subsection.
[17]
Thus,
the obligation to consider the “compelling reasons” exception arises in every
case in which a claimant is found to have suffered past persecution (as the
Board accepted in this case, not having made any clear finding disbelieving the
applicant’s testimony about his detention and torture). The Board therefore
erred by failing to consider section 108(4) of the IRPA.
[18]
I
note that there are some cases of this Court that have held that it will only
be an error to fail to consider section 108(4) if there is prima facie
evidence of “appalling” or “atrocious” past persecution, since that exception
is only intended to arise in extraordinary circumstances: Alfaka Alharazim v
Canada (Minister of Citizenship and Immigration), 2010 FC 1044, para 49. The
reasoning in this line of cases was not followed in Kumarasamy v Canada (Minister of Citizenship and Immigration), 2012 FC 290.
[19]
I
find that the apparent tension between the decision in Yamba and Alfaka
Alharazim does not affect the outcome of this application, however. The
applicant testified to experiencing torture while in detention and the Board
made no adverse credibility finding in respect of that testimony. Thus, even
applying the stricter standard of prima facie evidence of appalling or
atrocious past persecution the applicant likely satisfies that standard and the
Board therefore erred by failing to consider section 108(4) of the IRPA.
The application is therefore granted.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review is granted. The matter is referred back to the
Immigration Refugee Board for reconsideration before a different member of
the Board’s Refugee Protection Division. No question for certification has
been proposed and the Court finds that none arises.
"Donald
J. Rennie"
Email this Content