Date:
20130328
Docket:
IMM-7386-12
Citation:
2013 FC 321
Ottawa, Ontario,
March 28, 2013
PRESENT: The
Honourable Mr. Justice Blanchard
BETWEEN:
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Applicant
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and
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B420
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Respondent
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PUBLIC REASONS
FOR JUDGMENT AND JUDGMENT
(Confidential Reasons for
Judgment and Judgment issued March 28, 2013)
BLANCHARD
J.
[1]
The
Minister seeks judicial review under subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 [IRPA] of a decision by the
Refugee Protection Division [RPD] of the Immigration and Refugee Board, dated
June 22, 2012, granting the Respondent refugee status.
[2]
The
Applicant seeks an order pursuant to paragraph 18.3(1)(b) of the Federal
Courts Act, R.S.C., 1985, c. F-7 quashing or setting aside the decision and
referring the matter back to the RPD for determination in accordance with such
directions as the Court considers appropriate.
I. Facts
[3]
The
Respondent is a 32-year-old Sri Lankan citizen who is ethnic Tamil. He arrived
in Canada aboard the MV Sun Sea with approximately 500 others on August
13, 2010, and immediately sought asylum pursuant to sections 96 and 97(1) of
the IRPA.
[4]
In
his Personal Information Form (PIF), the Respondent described his personal
circumstances as follows:
[5]
(a)
The
Respondent was born in Navatkadu Varani, Jaffna, a town in the northernmost
region of Sri Lanka.
(b)
The
Respondent’s family suffered as a result of the war and was required to
relocate on many occasions. Many family members were lost, including his sister
who was killed by a landmine.
(c)
The
Respondent was living with his uncle in Vanni in August 2006. At that time the
Liberation Tigers of Tamil Eelam (LTTE) were forcibly recruiting young people. The
Respondent’s company paid a percentage of his salary to the LTTE so that he
would not be forced to join.
(d)
From
2007 to 2008 the Sri Lankan army was advancing toward Vanni. As circumstances
worsened, the Respondent and his uncle’s family relocated twice to avoid the
bombing.
(e)
At
the outset of 2009, the LTTE were forcibly recruiting every young Tamil in the
area, and the Respondent went into hiding since he did not want to join.
(f)
On
May 16, 2009, the Sri Lankan Army forced Tamils into a controlled area. The
Respondent was interned in a camp and questioned by the Criminal Investigation
Department (CID) of the government about whether he had had any training with
the LTTE. He denied any affiliation, but the CID did not believe him. He was
threatened but eventually permitted to transfer and join his uncle’s family in
another camp. The Respondent bribed the Sri Lankan Army and paramilitary forces
to release him. Once released, fearing re-arrest, he hid with relatives until
he was able to make his way to Colombo.
(g)
The
Respondent applied for and received a passport and an Indian visa. He went to
Chennai for one month in the summer of 2009 and decided to return based on
reports that everything was normal in Sri Lanka.
(h)
On
the way back from the airport, the police stopped the Respondent at three different
checkpoints because he did not have a police registration. The CID also took
him to the police station because he did not have his identity card. Upon being
released, the Respondent feared that he would be arrested on “suspicion” and
killed because his registration would not check out. As a result, he fled to Singapore in August 2009. He registered with the UNHCR in Malaysia, and made his way to Thailand. He left for Canada aboard the MV Sun Sea on May 14, 2010.
II. Decision
under review
[6]
The
RPD found the Respondent to be a Convention refugee pursuant to section 96 of
the IRPA by reason of a well-founded fear of persecution based on his
membership in a particular social group and imputed political opinion.
[7]
The
RPD found the Respondent to be a young, single, male Tamil from the north of Sri Lanka, who has traveled on the MV Sun Sea, a smuggling operation, alleged to
have been organized by the LTTE. As such the RPD found that he fits into the
category of membership in a particular social group, in addition to political
opinion, imputed or real, due to perceived interaction with LTTE operatives.
[8]
The
RPD found that the Respondent demonstrated a lack of subjective fear of harm
when he returned from India to Sri Lanka. The RPD determined that his registration
with the UNHCR in Malaysia and Thailand, coupled with his “nefarious” seaborne
trip to Canada prior to receiving the UNHCR’s decision, demonstrates both a
lack of subjective fear and asylum shopping. Further, the RPD found other
credibility concerns with the Respondent’s narrative, namely that he embellished
aspects of his claim. The RPD did not believe that the Respondent was beaten,
as claimed, that anyone tried to beat him, that he received numerous death
threats from the Sri Lankan authorities or that he was tortured in the camp.
[9]
The
RPD found that the Sri Lankan authorities were not interested in the Respondent
prior to his departure from Sri Lanka. The Respondent was easily able to pass
through checkpoints without a police certificate and with an ID card indicating
a suspicious location. He went to India, exiting Sri Lanka through the normal
process, and returned one month later. He was photographed and his ID noted
while interned in the camp, and the Sri Lankan authorities had many
opportunities to arrest him. He was not arrested when exiting Sri Lanka the second time.
[10]
Notwithstanding
its credibility findings and the Respondent’s lack of a subjective fear of harm
while in Sri Lanka, the RPD found that the Respondent had established a basis
for a sur place claim by reason of his perceived ties to the LTTE. The
RPD found on a balance of probabilities that the Respondent would be wanted for
more specific questioning regarding his potential knowledge, real or imputed,
of LTTE operatives because of the time he spent on the MV Sun Sea, and his
exposure to a crew that allegedly had LTTE ties.
[11]
The
RPD was satisfied that sources were generally agreed that Tamils from the north
and east were likely to receive greater scrutiny upon arrival at the Colombo airport. Connection with the LTTE, illegal departure from Sri Lanka, or involvement
with the media or NGOs among other factors would put a returnee at greater risk
of detention. Further, violations of humanitarian and international human
rights law, including torture and coercion, by the Sri Lankan state security
forces have been documented for a significant period. Although Sri Lanka has recognized that there is a crisis of impunity for human rights abuses by state forces
and those associated with the state, no measures have been undertaken to
address these issues. The RPD observed that the ICRC reporting indicates that
there is a continuing prevalence of abduction, arbitrary arrest and detention
without due process, and torture. The Sri Lankan government’s unwillingness to
allow the ICRC access to its LTTE rehabilitation camps and areas of
(predominantly Tamil) returnees also demonstrates the government’s hostility to
accounting for the behaviour of its state security actors.
[12]
The
RPD concluded as follows:
Based
on the evidence before me, in particular his association with the MV Sun Sea
that has been internationally touted as an LTTE smuggling operation and having
an LTTE affiliated crew, and the claimant is a young, single, male Tamil from
the north, I find these cumulative factors would make him a person of interest
to the Sri Lankan authorities if returned to Sri Lanka. On a balance of
probabilities, I find that he would be questioned and detained. In the face of
the independent objective country evidence, I find that he faces more than a
serious possibility of persecution by the state security apparatus. As the
state is the perpetrator of such treatment, I also find that he has no state
protection or viable internal flight alternative.
III.
Issues
1.
Did
the RPD err in concluding that the Respondent’s claim had a nexus to a ground
in the Convention refugee definition, pursuant to section 96 of the IRPA?
2.
Did
the RPD err in finding that the Respondent has a well-founded fear of
persecution?
IV. Standard
of Review
[13]
The
issue
of nexus to a convention ground raises a question of mixed law and fact. The
question raised concerns the
existence of a connection between Convention grounds and the Respondent’s
particular factual circumstances. It follows that the applicable
standard of review is reasonableness. See: Dunsmuir v. New Brunswick,
2008 SCC 9 at paragraph 53. Issues relating to the sufficiency and
intelligibility of reasons are reviewable on the reasonableness standard. See: Newfoundland and Labrador
Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
paragraph 22; Dunsmuir at paragraph 47.
[14]
Issues
relating to the sufficiency of the evidence to link a claimant to a particular
social group and the “well foundedness” of the Respondent’s fear raise
questions of mixed law and fact and are also reviewable on the reasonableness
standard.
V. Analysis
[15]
The
Applicant argues that the RPD erred in finding that as a young Tamil male from
the north of Sri Lanka who has traveled on the MV Sun Sea, the Respondent
was part of a “particular social group” for the purpose of the Convention
refugee definition and therefore that there was a nexus or link between the
alleged persecution feared by the Respondent and a Convention refugee ground.
[16]
In
Minister of Citizenship and Immigration v. B380, 2012 FC 1334 [B380],
a recent decision of this Court, Chief Justice Crampton held that the RPD erred
in finding that passengers on the MV Sun Sea are members of a particular
social group for the purpose of the Convention refugee definition. At paragraph
23 of his reasons, the Chief Justice wrote that
…
it is implicit in the approach that was adopted in [Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689, at paragraphs 63-70] Ward, above,
that the historical fact of having come voluntarily together in a particular
way for the ultimate purpose of traveling to Canada to seek refugee status is
not sufficient basis upon which to become a “particular social group” within
the meaning of section 96.
The Supreme Court in Ward teaches
that the finding of a particular social group must take into account the
“underlying themes of the defence of human rights and anti-discrimination that
form the basis for the international refugee protection initiative.”
Voluntarily choosing to set sail for Canada on an illegal human smuggling ship
does not engage the defence of human rights or anti-discrimination.
[17]
I
agree with Chief Justice Crampton’s conclusion that passengers on the MV Sun
Sea do not represent a particular social group for the purpose of section
96. In the result, I find that the RPD’s conclusion to the contrary was
unreasonable.
[18]
Unlike
B380, in the instant case the RPD did not base its conclusion solely on
the Respondent’s membership in a particular social group as a passenger on the MV
Sun Sea. It also expressly found that the Respondent would face persecution
on the basis of perceived political opinion and, implicitly, on the basis of
his ethnicity/race.
[19]
The
following passages in the RPD’s reasons support the above proposition:
[27]
I find the claimant is a young, single, male Tamil from the north of Sri Lanka, who has traveled on the MV Sun Sea, which was a smuggling operation, alleged to
have been organized by the LTTE. Due to these factors, I find the claimant fits
into the category of membership in a particular social group in addition to
political opinion, imputed or real due to perceived interaction with LTTE
operatives.
[39]
… I find on a balance of probabilities that because of the time he spent on the
MV Sun Sea, and his exposure to a crew that allegedly had LTTE ties, he
would be wanted for more specific questioning regarding his potential
knowledge, real or imputed, of LTTE operatives.
[51]
Based on the evidence before me, in particular his association with MV Sun
Sea that has been internationally touted as an LTTE smuggling operation and
having an LTTE affiliated crew, and that the claimant is a young, single, make
Tamil from the north. I find these cumulative factors would make him a person
of interest to the Sri Lankan authorities if returned to Sri Lanka.
[20]
The
Supreme Court in Dunsmuir at paragraph 48 endorsed the view that, when
reviewing a decision on the reasonableness standard, a court must pay
“respectful attention to the reasons offered or which could have been
offered in support of a decision” Mr. Justice Evans in a dissenting
decision in P.S.A.C. v. Canada Post Corp. 2010 FCA 56 (subsequently
adopted by the Supreme Court of Canada, in P.S.A.C. v. Canada Post Corp.,
2011
SCC 57)
reinforced this view. He wrote at paragraph 164 of his reasons:
The
underlined words avoid an unduly formalistic approach to judicial review. Thus,
to the extent that the Tribunal does not fully explain aspects of its decision,
the Court may consult evidence referred to by the Tribunal in order to flesh
out its reasons. However, I do not regard the Court in Dunsmuir as
inviting a reviewing court to usurp the tribunal’s responsibility for
justifying its decisions.
[21]
The RPD’s
findings are not as clear as they could have been and in some cases arguably
deficient. For instance, the RPD could not rely upon imputed knowledge
of LTTE activities to support its finding of imputed political opinion. I am
nevertheless satisfied that the evidence referred to by the Tribunal in its
reasons supports a finding that the Respondent, as a young, Tamil male from
northern Sri Lanka, has a well-founded fear of persecution by reasons of his
race and his imputed political opinion by reason of his perceived association
with the LTTE. I am satisfied that that the RPD’s conclusion is reasonable.
[22]
In the circumstances,
I find the following passage in Veeravagu v. Canada (Minister of Employment
and Immigration), [1992] F.C.J. No. 468 (C.A.) (QL) instructive on the
issue of nexus to race. In his reasons, Justice Hugessen, writing on behalf of
the Federal Court of Appeal, has this to say:
In
our view, it is obvious beyond any need of demonstration that if a person faces
“real and oppressive” risks, including a risk of “substantial violence”, from
state sponsored sources (the IPKF) because he or she belongs to a group one of
whose defining characteristics is race, (young Tamil males), it is simply
impossible to say that such person does not have an objective fear of
persecution for reasons of race.
See also Nara v. Canada (Minister of Citizenship and Immigration), 2012 FC 364 at paragraph 38.
[23]
In
its reasons, the RPD repeatedly referenced country documentation concerning the
treatment of Tamils from northern Sri Lanka by government agencies and the
risks faced by such returnees. It is therefore implicit in the reasons that the
RPD considered the Respondent’s objective fear of persecution to have a nexus
with his Tamil ethnicity.
[24]
The
Applicant argues that the RPD failed to properly consider all of the evidence
when he found that the Respondent had a well-founded fear of persecution on the
“sole basis” that he had contact with the LTTE on the MV Sun Sea and
therefore acquired an “association” with the LTTE.
[25]
In
my opinion, the RPD’s treatment of the evidence was reasonable. The RPD
considered all of the evidence before it including the evidence relating to the
Respondent’s circumstances, the treatment of returnees, particularly Tamils
from the north, and the attitude of Sri Lankan authorities relating to passengers
who traveled on the MV Sun Sea. The RPD was entitled to prefer the
evidence it relied upon to the documentary evidence submitted by the Applicant.
VI. Conclusion
[26]
The
RPD’s conclusion that the Respondent’s alleged membership in a “particular
social group” is unreasonable. However, its conclusion that the Respondent
would face persecution based on imputed political opinion and, by implication,
ethnicity is reasonable. The Board made no reviewable error in its
consideration of the evidence. On the whole, the decision falls within the
range of defensible outcomes based on the facts and the law.
[27]
The parties have had the opportunity to raise a
serious question of general importance as contemplated by paragraph 74(d)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27,
and have not done so. I am satisfied that no serious question of general
importance arises on this record. I do not propose to certify a question.
VII. Confidentiality
[28]
The
parties shall file written submissions setting out their respective positions
on the content of the Reasons to be released publicly no later than ten (10)
days from receipt of these Reasons.
Postcript
a. These
Reasons for Judgment and Judgment are un-redacted from the Confidential Reasons
for Judgment and Judgment issued on March 28, 2013, pursuant to a Protective
Oder dated August 14, 2012.
b. The
Court canvassed counsel for the parties for their submissions on the content of
the Public Reasons for Judgment and Judgment. Both parties agreed that the
Confidential Reasons for Judgment and Judgment be issued publicly without
redaction.
c. I am
satisfied that the un-redacted confidential Reasons for Judgment and Judgment
dated March 28, 2013, can be issued.
JUDGMENT
THIS COURT ADJUDGES
THAT:
1. The application for
judicial review is dismissed.
2. No serious question of
general importance is certified.
“Edmond P. Blanchard”
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