Date: 20070327
Docket: IMM-2581-06
Citation: 2007 FC 326
Ottawa, Ontario, March 27,
2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
MILAN SULAKSHAN RAMANAYAKE SUDUWELIK
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application by Milan Sulakshan
Ramanyake Suduwelik challenging a decision of the Refugee Protection Division
of the Immigration and Refugee Board (Board) which denied his claim to refugee
protection.
Background
[2]
Mr.
Suduwelik entered Canada from Sri Lanka on July 14, 2002 under
a student visa. It was not until September 22, 2004 that he sought refugee
protection under sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA). His claim to protection was based
on allegations of political persecution largely directed by an influential
adversary and member of the Sri Lankan Parliament, Chandana Kathriarachchi.
This included alleged incidents of wrongful arrests, false accusations, assaults,
threats, harassment and a fire bombing, involving himself, his family and his
political associates.
[3]
Mr.
Suduwelik claimed that in 2001 he had supported the election campaign of Mr.
Kathriarachchi’s political rival, Ravi Karunanayake. In the course of his
employment, he had also directed the seizure of seven vehicles that had been
leased by Mr. Kathriarachchi. These actions, he said, led to his being targeted
for reprisal.
[4]
Mr.
Suduwelik gave evidence that, in July 2001, Mr. Kathriarachchi and his
supporters had protested the seizure of the seven (7) leased vehicles by
ransacking the family home and by assaulting his parents. This, he said, was
followed almost immediately by his arrest, for the illegal seizure of the
leased vehicles. He claimed to have been beaten by the police while in custody
but he was released by the Court on the following day and returned to work.
[5]
Mr.
Suduwelik also testified that in August 2001 the police attended at his
father’s photo studio to arrest a young Tamil employee. He and his father were
also arrested, ostensibly for sheltering a member of the Liberation Tigers of
Tamil Eelam (LTTE). During their detention of six (6) days, they claimed to
have been beaten and abused by the police. Mr. Suduwelik stated in his Personal
Information Form (PIF) and in his testimony to the Board that he believed his
arrest had been politically motivated and orchestrated by Mr. Kathriarachchi.
[6]
Also
in August 2001, Mr. Suduwelik said that Mr. Kathriarachchi and his supporters
appeared at the family home and attacked and threatened the family (including
himself). This attack was supposedly motivated by Mr. Suduwelik’s political support
for Mr. Karunanayake. This was followed almost immediately by the firebombing
of a rental home owned by his parents and by a campaign of threats and
harassment. The firebombing incident was corroborated by a formal written
complaint by Mr. Suduwelik’s father to the local police.
[7]
Mr.
Suduwelik’s problems supposedly did not end in 2001. He said that Mr. Karunanayake
and a number of his political supporters had been arrested in 2004 by the
authorities and three or four of them were “missing”. He said that around the
same time he had learned that six or seven “people” had assaulted his parents
in their home and searched the house for him. He also claimed to be on a
government list of persons who were subject to arrest. This threat of arrest was
corroborated in a letter written by a lawyer hired by Mr. Suduwelik’s parents
which stated in part:
It is also revealed that a list has been
prepared indicating the names of several other persons who have been in the
employment of Mr. Ravi Karunanayake to be arrested and taken into custody and
that your son’s name too has been included in the said list.
In the foregoing circumstances I wish to
inform you that by a Police Unit established unlawfully steps have already been
taken to arrest your son and take him into custody.
In the event of your son being so
arrested and taken into custody there is an imminent danger to his life as well
as to his freedom.
It is further revealed that Sri Lanka
Airport Authorities have already been instructed to take into custody promptly
all persons who are said to be listed in the said list immediately on their
return to Sri
Lanka from abroad.
In the aforesaid premises it is my advice
to you to request your son not to return to Sri Lanka as there is an imminant danger to his
life and body.
[Quoted from original text]
[8]
As
a result of these alleged events, Mr. Suduwelik testified that he fled to Canada. He said
that his parents continued to live in fear in Sri Lanka. He also
stated that he had learned that Mr. Karunanayake and his supporters had been
attacked and threatened as late as October 2005.
The Board Decision
[9]
The
Board rejected Mr. Suduwelik’s evidence as unreliable. While the Board clearly
acknowledged the existence of violence surrounding Sri Lankan political
activity (mostly during election campaigns) it found nothing in the documentary
evidence to establish a pervasive culture of political violence directed at
rank and file political activists.
[10]
The
decision also noted that Mr. Suduwelik’s superior in the UNP Youth League, P.D.
Perera, was able to continue his political activity without evidence of
political persecution. The Board made specific reference to a letter from Mr.
Perera which, it said, contained no indication of any ongoing persecution
directed at Mr. Perera. This point is made in the following passage from the
Board’s decision:
The claimant testified that Perera was arrested
in 2004 but was released and has been free since. Perera has also submitted
evidence to support the claimant’s assertion that he faces persecution. There
is no evidence from that letter that Perera himself has been killed or
persecuted because of his political leadership role. The claimant provided
no reliable evidence on why he, an ordinary member, would face persecution when
his superior in the party is not facing such persecution.
[Emphasis added]
[11]
The
Board also discounted Mr. Suduwelik’s evidence because he had failed to
indicate in his PIF that he was a coordinator or group leader in the Youth
League and because he had given inconsistent testimony on this same issue.
[12]
The
Board went on to describe Mr. Suduwelik’s evidence concerning the political
persecution of his Sir Lankan associates in 2004 as second hand, sketchy and
self-serving.
[13]
The
Board rejected the Sri Lankan lawyer’s letter attesting to Mr. Suduwelik’s risk
of “false” arrest because that letter referred to the targets of arrest, including
Mr. Suduwelik, as employees of Mr. Karunanayake. Because Mr. Suduwelik was
never a paid employee of Mr. Karunanayake, the letter was found to be
unreliable. The Board also referred to this letter as self-serving and
inconsistent with the documentary evidence on Sri Lanka.
[14]
In
considering the alleged incident in 2001 involving the arrest of Mr. Suduwelik
and his father for sheltering a member of the LTTE, the Board held that there
was no reliable evidence of a political motive. The Board went on to apply its
specialized knowledge that the Sri Lankan authorities sometimes arrest the
employers of persons suspected of having LTTE links.
[15]
The
Board did acknowledge documentary evidence that Mr. Karunanayake was facing
criminal charges in Sri Lanka for misappropriation of funds but discounted its
significance by saying that this was a matter for determination by the Sri
Lankan Courts.
[16]
The
Board went on to say that there was “no evidence of attempted harm to [Mr.
Suduwelik] during the 2001 election or after the election was over”.
Issues
[17]
(a) What
is the appropriate standard of review for the issues raised in this proceeding?
(b)
Did
the Board commit any reviewable errors in its decision?
Analysis - Standard of
Review
[18]
With
one exception, Mr. Suduwelik’s criticisms of the Board’s decision are directed
at its credibility findings. It is well established that a credibility finding
by the Board can only be set aside if it is found to be patently unreasonable:
see Offei v. Canada (Minister of Citizenship and Immigration), [2005]
F.C.J. No. 2000, 2005 FC 1619, especially para. 9, and Crespo v. Canada (Minister
of Citizenship and Immigration), [2005] F.C.J. No. 849, 2005 FC 672. The
rationale for this heightened level of deference was articulated by the Federal
Court Appeal in the often-cited case of Aguebor v. Canada (Minister of Employment and Immigration)
(1993), 160 N.R. 315, [1993] F.C.J. No. 732 where Justice Robert Décary stated:
4 There is
no longer any doubt that the Refugee Division, which is a specialized tribunal,
has complete jurisdiction to determine the plausibility of testimony: who is in
a better position than the Refugee Division to gauge the credibility of an
account and to draw the necessary inferences? As long as the inferences drawn
by the tribunal are not so unreasonable as to warrant our intervention, its
findings are not open to judicial review.
[19]
Mr.
Suduwelik has raised one issue of procedural fairness, that being the Board’s
failure to give notice of its intention to rely upon specialized knowledge.
That is an issue to be judged on a standard of correctness: see Ha v. Canada (Minister
of Citizenship and Immigration), [2004] FCJ No. 174, 2004 FCA 49.
Analysis - Board’s
Decision
[20]
This
was a case of credibility. The Board had serious misgivings about Mr.
Suduwelik’s story and declined to accept it. It was certainly open to the
Board to have rejected Mr. Suduwelik’s claim on credibility grounds because, in
a number of areas, his testimony appears doubtful, tenuous or implausible.
[21]
The
problem, though, is that the Board’s decision cannot be sustained for the
reasons it gave. There is simply too much material evidence that the Board
neglected to consider to allow its decision to stand. This problem is
magnified by the Board’s heavy reliance on immaterial evidentiary points to
support its conclusion and by at least one significant factual error. The
cumulative effect of these errors is sufficient to require that this matter be
reheard on the merits.
[22]
The
primary stated basis for the Board’s conclusion that Mr. Suduwelik was not at
risk of political persecution was that his personal situation as a supposed
rank and file political activist did not match the risk profile described in
country condition reports. Although the Board’s concern is not entirely
unwarranted, Mr. Suduwelik’s alleged situation of personal risk was not as
simple as the Board considered it to be.
[23]
The
Board was obviously concerned about Mr. Suduwelik’s political profile and found
that he had subsequently embellished his status as a youth leader to enhance
the perception of personal risk. That was a finding reasonably open to the
Board. However, the difficulty with the Board’s treatment of this issue is
that it ignored the arguable significance of Mr. Suduwelik’s evidence that he
had been instrumental in seizing a number of leased vehicles from Mr. Kathriarachchi
and it was this incident which raised his profile as a target for retribution.
The Board mentioned this incident in passing but failed to analyse its potential
significance in taking Mr. Suduwelik outside of the general risk profile. The
Board also failed to acknowledge a number of news reports that indicated that
Mr. Kathriarachchi and his supporters were especially prone to political
violence and that Mr. Kathriarachchi may have been a suspect in a murder case.
The Board’s acknowledgement of political violence as a general phenomenon in Sri Lanka is not
sufficient to address the specific evidence bearing on Mr. Kathriarachchi’s
history of violence. Mr. Suduwelik’s evidence indicated that he was not
targeted by Mr. Kathriarachchi and his followers simply because he was an
“ordinary member” of an opposing political party. It was incumbent on the
Board to consider his risk profile in light of all the evidence and not simply
to rely upon generalized country condition evidence.
The Board’s decision also fails to squarely
confront Mr. Suduwelik’s evidence of violent attacks directed at himself, his
family and his political allies. Instead, the Board resorts to vague
conclusionary assertions that Mr. Suduwelik “provided no reliable evidence” or
that his evidence was “self-serving”. If the Board believed that Mr.
Suduwelik’s evidence was unreliable, it had a duty to say why that was so: see
Hilo v. Canada (Minister of
Employment and Immigration), [1991] FCJ No. 228, 130
N.R. 236. The
vague characterization of a claimant’s testimony as self-serving is also
unhelpful because a refugee’s evidence will seldom be otherwise.
[24]
Where
the Board did attempt to identify the source of some of its credibility
concerns, it did so in a very unconvincing way. For example, it rejected the
corroborating letter from Mr. Perera largely on the strength of an erroneous
perception that the letter failed to establish that Mr. Perera had been
persecuted for his political activity. The Board erred on this point by
missing Mr. Perera’s statement that he had been threatened by his political
adversaries in the same manner as Mr. Suduwelik.
[25]
The
Board’s rejection of the Sri Lanka lawyer’s letter which
asserted that Mr. Suduwelik was on a list of activists subject to political
arrest was based, in large measure, on a semantic nuance. The Board noted that
the letter characterized the targets of reprisal, including Mr. Suduwelik, as
having been “employed” by Mr. Karunanayake. The Board found this to be
inconsistent with Mr. Suduwelik’s evidence that he was an unpaid political
volunteer. While in a technical legal sense the verb “employ” may connote work
rendered for a wage, in common usage the word can mean only the putting of some
person or thing into use or service. The Board may have had reason to be
sceptical about this letter but not for the reason it gave.
[26]
It
is also of significance that the Board’s decision fails to acknowledge a
considerable amount of corroborating evidence including two official complaint
reports to the police attesting to the family assault and the firebombing
incidents in September, 2001 , affidavits by Mr. Suduwelik’s parents, two
medical reports documenting injuries sustained by Mr. Suduwelik, a letter from
Mr. Karunanayake, and a considerable amount of documentary evidence referencing
political violence by Mr. Kathriarachchi and his supporters. Some of this
evidence is particularly germane because it contradicted the Board’s finding
that there was no evidence of anyone attempting to harm Mr. Suduwelik or his
family between August, 2001 and July, 2002 (eg. the alleged firebombing was in
September, 2001).
[27]
While
the Board does not have an obligation to mention every piece of evidence in its
decision, the failure to note important evidence running contrary to the
Board’s findings will support - and in this case does support – an inference
that the decision was made without regard to the evidence. Here I rely on the
recent decision by Justice Judith Snider in Jones v. Canada (Minister
of Citizenship and Immigration), [2006] FCJ No. 591, 2006 FC 405 at para.
37 where she stated:
[37] As a general proposition, the
Board is entitled to prefer some documentary evidence above others (Maximenko
v. Canada (Solicitor General), [2004] F.C.J. No. 606, 2004
FC 504 at para. 18). It is also trite law to say that the Board need not refer
to every piece of evidence before it (ibid.). However, if the Board
fails to discuss important, contradictory evidence, then this Court may
conclude that the Board ignored or misapprehended key facts and came to an
erroneous decision (Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425
(T.D.) at para. 17). The questions becomes whether, overall, this evidence is
“so important and vital that failure to acknowledge it may constitute a
reviewable error” (Johal v. Canada (Minister of Citizenship and Immigration),
[1997] F.C.J. No. 1760 at para. 10 (T.D.)). In my view, the evidence that I
have identified above falls into this category. The Board’s failure to
acknowledge and weigh this evidence is a reviewable error.
[28]
The
Board’s treatment of Mr. Suduwelik’s evidence of being arrested along with his
father for harbouring a young Tamil is also troublesome. Mr. Suduwelik
testified that he believed this incident to be connected to his difficulties
with Mr. Kathriarachchi and there is at least a temporal relationship between
this event and several other incidents of alleged persecution by Mr.
Kathriarachchi and his supporters. The Board dismissed this evidence as
“unreliable” and relied instead on its specialized knowledge that the Sinhalese
employers of suspected Tamils are sometimes arrested and interrogated. Mr.
Suduwelik was given no prior notice by the Board that it intended to rely upon
its specialized knowledge and he argues that this was a breach of s. 18 of the Refugee
Protection Division Rules, S.O.R./2002-228 (Rules) and a breach of the
rules of natural justice. The Respondent argues that if such a breach occurred
it was of no material significance to the outcome.
[29]
The
requirement for the Board to give notice of its intended use of specialized
knowledge under s. 18 of the Rules is well understood and rigorously enforced
in cases where the knowledge applied could have affected the Board’s decision:
see N’Sungani v. Canada (Minister of
Citizenship and Immigration), [2004] FCJ No. 2142, 2004 FC 1759 at para.
24. In this case the Board declined to consider an incident of an allegedly
politically motivated arrest on the strength of its specialized knowledge.
This was a material aspect of Mr. Suduwelik’s claim to persecution and, had he
been given prior notice, he would likely have made some effort to bolster his
case. In the result, this error of procedural fairness is of sufficient
concern that it justifies a rehearing of Mr. Suduwelik’s case.
[30]
For
all of the reasons given above, this application is allowed with the matter to
be remitted to a differently constituted Board for a redetermination on the
merits.
[31]
Neither
party proposed a certified question and no question of general importance
arises from this decision.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is allowed with the
matter to be remitted to a differently constituted Board for a redetermination
on the merits.
"R. L. Barnes"
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