Date: 20080417
Docket: IMM-1187-07
Citation: 2008 FC 505
Ottawa, Ontario, April 17, 2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
THESHANTHA LAKS
DE SILVA RIGAMKORALA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Theshantha
Laks de Silva Rigamkorala applies for judicial review under section 72(1) of
the Immigration and Refugee Protection Act, S.C. 2001, c.27 (the “IRPA”)
of a decision made by the Refugee Protection Division of the Immigration
and Refugee Board (the “Board”), dated March 21, 2007, wherein it was
determined that the Applicant was not a person in need of protection.
[2]
For
reasons that follow, I have decided that this application for judicial review
should be granted.
[3]
The
Applicant is a citizen of Sri Lanka who says he worked as a
seaman. He tells of being invited in September 2003 by his Sri Lankan shipping
agent to a social function where he was introduced to a local businessman, a
Mr. Perera. Mr. Perera asked the Applicant to accept packages, understood to
be illicit drugs, on his behalf when travelling overseas and to bring them back
to Sri
Lanka.
Not wanting to offend Mr. Perera, the Applicant agreed. On leaving the social
function, the Applicant and his shipping agent were stopped by the police and
arrested after a firearm was found in the shipping agent’s vehicle. Shortly
thereafter, Mr. Perera attended the police station and the Applicant and his
shipping agent were quickly released.
[4]
On
April 15, 2004, at the Taiwan terminus of a voyage, the Applicant was
contacted by a Taiwanese shipping agent at the request of Mr. Perera. The
agent asked the Applicant to deliver a package to Mr. Perera when he returned
by air to Sri
Lanka.
The Applicant refused. On April 17th, upon arrival in Sri Lanka, the
Applicant was met at the airport by his shipping agent and Mr. Perera who
confronted him about refusing to accept and deliver the package. The Applicant
refused to deliver packages for Mr. Perera. The Applicant then left the
airport. Later that evening, the Applicant was telephoned by Mr. Perera who
continued to demand an explanation as to why he refused to cooperate. The
Applicant ended the call by hanging up on Mr. Perera.
[5]
That
night, four masked individuals entered the Applicant’s home and threatened and
assaulted him because he refused to cooperate with Mr. Perera. The assailants
warned him not to inform the police. The Applicant was hospitalized for two
days as a result of the assault. He gave a report of the assault to the police
while at the hospital. He also reported about the role of the shipping agent
and about Mr. Perera’s efforts to induce him to smuggle drugs. Upon release
from the hospital on April 19th, the Applicant went into hiding, staying at a
cousin’s residence.
[6]
On
April 22nd, unknown persons abducted and killed the Applicant’s twin brother.
Both the official Inquirer into Deaths and the police recorded the brother’s death
as a homicide.
[7]
The
Applicant sought the advice of a lawyer in Sri Lanka who advised him
that his best recourse was to flee the country because he would not be safe in Sri Lanka. The
Applicant sold his house to raise the money to pay another shipping agent 12,000
Sri Lankan rupees to be hired on as a seaman on a ship leaving Sri Lanka on June 10,
2004. After stopping at several ports, the ship eventually reached Vancouver on September
16, 2004. The Applicant left the ship without his papers and made his way to Toronto where he
applied for refugee status.
DECISION UNDER REVIEW
[8]
The
Board determined that section 96 of the IRPA was not applicable as persecution
by a criminal element is not a Convention ground. The Board’s analysis and
decision was framed under section 97 of the IRPA. Having accepted the
Applicant’s identity, the determinative issue for the Board was the
availability of state protection.
[9]
In
giving oral reasons for its decision, the Board stated:
One thing is certain: the burden was on
the claimant to provide evidence in a clear and convincing manner, and the
panel stresses that the evidence must be clear and convincing of the state’s
inability to ensure his protection.
[10]
The
Board rejected the Applicant’s claim because it was not satisfied that the
Applicant had established that state protection was not available.
ISSUE
[11]
The
Applicant submits that the issue in this judicial review is the availability of
state protection. The Respondent submits that the issue is credibility.
[12]
A
review of the Board’s reasons indicates that its focus was on the issue of state
protection. The Board did not accept some of the Applicant’s answers to its
questions. It is equally clear that significant elements of the Applicant’s
evidence were not disputed.
[13]
I
find that the issue in this judicial review is as follows: Did the Board
misconstrue the Applicant’s evidence and fail to address the question of availability
of state protection? In other words, did the Board fail to consider if the
Applicant was a person in need of protection and would be personally subject to
torture, a risk of life or risk of cruel and unusual treatment or punishment if
returned to Sri
Lanka?
STANDARD OF
REVIEW
[14]
In
this case, as in Chaves v. Canada (Minister of
Citizenship and Immigration), 2005 FC 193 at para. 11, the nature of
the issue involves determining whether the Applicant has rebutted the
presumption of state protection. This requires applying a legal standard to a
set of facts. In my view, before a board can apply the legal standard of a
“clear and convincing confirmation of a state’s inability to protect” (Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689 at para. 50), a board must
first make relevant findings of fact and credibility.
[15]
In
Dunsmuir v. New Brunswick, 2008 SCC 9 at para.
34, the Supreme Court of Canada determined that there are now only two
standards of review: correctness and reasonableness. In addition, the Supreme
Court held that questions of fact should attract deference from the reviewing
Court and thus are to be reviewed on the reasonableness standard. This was
followed in Sukhu v. Canada (Minister of
Citizenship and Immigration), 2008 FC 427 at para. 15, where this Court
held that, in light of Dunsmuir, the reasonableness standard applies to
questions of fact.
[16]
In
Dunsmuir, above, at para. 47, the Court also gave useful instruction on
applying the reasonableness standard. Reasonableness is concerned with the
existence of justification, transparency and intelligibility within the
decision-making process. It is also concerned with “whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law”. Justification requires that a decision be made with
regard to the evidence before the decision-maker. A decision cannot be a
reasonable one if it is made without regard to the evidence submitted (Katwaru
v. Canada (Minister of
Citizenship and Immigration), 2007 FC 612 at paras. 18, 22).
ANALYSIS
[17]
The
Board began by stating the Applicant failed to provide documentation that he
was a seaman. The Board did not accept the Applicant’s explanation that he did
not have his papers because his seaman and passport documentation was in the
possession of the captain of the ship on which he arrived. The Board was of
the view that the Applicant should have retrieved or replaced those documents.
The Board also made much of the fact that the Applicant did not immediately
respond with the name of the company which owned the ship he last sailed on.
[18]
The
Applicant’s evidence of being hospitalized as a result of being assaulted and
of making a report to the police was not disputed. The Applicant’s evidence
that his twin brother was abducted and murdered was confirmed by police, official
inquiry and family reports. Finally, the lawyer the Applicant consulted wrote
a letter confirming his advice to the Applicant that his only option was to
flee the country because he would not be safe in Sri Lanka.
[19]
Further,
the Applicant provided documentary evidence which indicated that police
corruption was a major problem in Sri Lanka. Much of the
corruption had to do with the illicit drug trade. The documentary evidence
submitted supports a conclusion that the police would be unwilling or
unresponsive to dealing with criminal activities by members of the illegal drug
trade.
[20]
The
Applicant testified that he feared for his life because of retaliation by
criminals involved in the illegal drug trade. In response to questions by his
counsel the Applicant stated:
By Counsel (to claimant)
-
Do you –
are you still afraid to return to Sri Lanka?
By Claimant (to counsel)
-
Yes.
By Counsel (to claimant)
-
And who
exactly are you afraid of?
By Claimant (to counsel)
-
To
Chandrasakaram and to supporters of the underworld.
By Counsel (to claimant)
-
Do you
believe that these people are part of the underworld?
By Claimant (to counsel)
-
I think
so, definitely.
By Counsel (to claimant)
-
What is
your opinion; what do you think their business is?
By Claimant (to counsel)
-
They are
doing drug business.
By Counsel (to claimant)
-
What are
you afraid of; what do you think would happen if you returned home?
By Claimant (to counsel)
-
They will
take me away and kill me.
By Presiding Member (to claimant)
-
For what –
what purpose would kill you? Why do you think they would – why would they kill
you?
By Claimant (to presiding member)
-
Because I
did not perform in accordance with what they told me to do.
By Presiding Member (to claimant)
-
I
understand, but if you – if you do not perform what they asked you to perform
they will kill you only for that? What would they receive; what will be their
– why would they kill you, I don’t understand that? In other words are they
afraid of you, or are you afraid of them?
[21]
In
response to the questions by the Presiding Member the Applicant tried to
respond to the Board’s insistent probing on why the Applicant’s enemies would
want to kill him.
By Presiding Member (to claimant)
-
That I
understand, sir, you did not do what they wanted you to do, but the rest I
don’t understand.
By Claimant (to presiding member)
-
They will
be – they suspect that I will go and give this information to higher
authorities, and resulting there from there will be problems for them.
By Presiding Member (to claimant)
-
So you’re
telling me that if you talk to the authorities then the authorities would react
against them and they will have problems?
By Claimant (to presiding member)
-
I think
so, that is the reason they want (inaudible) or need to kill me.
By Presiding Member (to claimant)
-
So if I
understand you correctly if you would go to higher authorities the higher
authorities would react and they could be arrested those guys?
By Claimant (to presiding member)
-
Yes, some
time they make in to custody, but after that my life will be definitely – my
life – I will lose my life.
[22]
The
Board continues with a focus on the arrest of criminals rather than the
consequences to the Applicant.
By Presiding Member (to claimant)
-
So then
the police would react. The police – if it would be possible that if you tell
the police then Mr. Pereira, amongst others, could be arrested?
By Claimant (to presiding member)
-
I am
unable to tell you – to comment anything about that?
By Presiding Member (to claimant)
-
Well I’m
only assuming what you’re telling me. You say that if you go to higher
authorities they would be arrested, but then you’re telling me that you can’t –
you can’t answer that to me. I don’t understand, you’re saying something and
then you’re saying something contrary.
-
What I
understood what you said is that if you go to higher authorities those criminals
will have problems on the part of the authorities, including they could be
arrested; right?
By Claimant (to presiding member)
-
Sometimes
they could be arrested.
By Presiding Member (to claimant)
-
So there
would be state protection, right?
By Claimant (to presiding member)
-
For who
state protection?
By Presiding Member (to claimant)
-
Well the
persons that are after you would be arrested.
By Claimant (to presiding member)
-
It is not
one or two persons, it is a large organization which has spread out in to many
places.
By Presiding Member (to claimant)
-
I
understand, sir, but we have that in Canada also; we have criminals also in Canada. If somebody goes to the
authorities the authorities will make an investigation and there is a
possibility that the person will be arrested. There’s a possibility that the
person that has given those information can have problems, but that’s normal.
-
So let me
resume; what you’re telling is that they’re after you because if you give them
– if you give to authorities information they might be arrested, right?
By Claimant (to presiding member)
-
Before I
go to Sri Lanka they will catch me at the
airport; I know that they will.
By Presiding Member (to claimant)
-
You’re not
answering my question, answer me that question.
[23]
Throughout
the hearing, the Applicant was consistent in his testimony that even if he
reported the criminals to the police, which he had done, the criminals would
still find a way to kill him. This would occur even if the individuals he
named were arrested.
[24]
The
documentary evidence indicates that the police are not likely to interfere with
drug trade criminals because of corruption. The risk to the Applicant was that
he would be killed because of his refusal to cooperate in the illegal drug
trade and ineffective police protection as a result of corruption.
[25]
The
Board misconstrues the Applicant’s evidence. The Boards stated in its reasons:
On thing is certain: his answers
certainly did not speak to a lack of state protection, but rather the contrary.
For example:
The claimant told the panel that, if he
approached senior police authorities, this could result in the arrests of Mr.
Perera and the other man. And when he was asked what kind of information he
could give them, he replied at one point that he could give them the names of
Perera and Chandrasekaram. However, according to Exhibit C-10, he had already
given these names.
Later, he told the panel that he had
other information that could harm those people. However, this does not
correspond to the testimony and written documentation. One thing is sure: at
no time and in no circumstances did the claimant tell the panel that he
feared the police (emphasis added).
[26]
From
the Board’s reasons and the lines of questioning excerpted above, I conclude that
the Board focussed on the whether the police would arrest the criminals rather
than whether the police protection would be effective. The following evidence
was submitted on the issue of effective state protection for the Applicant: the
apparent influence Mr. Perera has with the police; the killing of the
Applicant’s brother very shortly after the Applicant reported his assault after
being warned not to by the assailants; and the documentary evidence of police
corruption as a result of bribery by the criminal element involved in the
illicit drug trade. The Applicant had already reported his ordeal in
sufficient detail to the police and yet there is no indication that the police
took any action to protect him from the criminal element.
[27]
Given
that the Board directed its mind to the erroneous question of whether the
police would arrest the criminals and not to the question of whether the
Applicant faced risk of being killed on return to Sri Lanka by the criminal
element involved in the drug trade, I find that the Board failed to consider
the questions of the availability of state protection for the Applicant.
[28]
The
evidence not disputed by the Board, namely the assault on the Applicant, his
brother’s death and the country condition information are worthy of
assessment. However, the evidence, or lack of evidence, cannot be properly
assessed where the Board misconstrues the Applicant’s evidence and misdirects
itself on the issue of state protection. The Board did not fully engage in a
proper analysis of state protection.
[29]
I
find the Board’s assessment of the evidence of state protection to be flawed as
its findings of fact were made without regard to the evidence before it. The
findings therefore cannot be reasonable (Katwaru, above).
CONCLUSION
[30]
I
find the Board’s decision to be unreasonable. As a result, the Board’s decision
will be quashed. The matter is to be referred to a differently constituted board
for redetermination.
[31]
The
parties did not submit any question for certification. I do not find any
question of general importance for certification arising from this judicial
review.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. The Board’s
decision is quashed. The matter will be referred to a differently constituted
board for redetermination.
2. There is no
question of general importance that is certified.
“Leonard
S. Mandamin”
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