Date:
20131025
Docket:
IMM-10722-12
Citation:
2013 FC 1085
Ottawa, Ontario,
October 25, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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B407
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
& IMMIGRATION
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Respondent
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PUBLIC REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Immigration and Refugee Board, Refugee Protection Division (the
Board), dated September 13, 2012, wherein the applicant was determined to be
neither a Convention refugee within the meaning of section 96 of the Act nor a
person in need of protection as defined in subsection 97(1) of the Act.
[2]
The applicant requests that the Board’s
decision be set aside and the application be referred back to the Board for
redetermination by a different panel.
Background
[3]
The
applicant is a Tamil man from Jaffna, Sri Lanka. Between 2002 and 2009, he
operated a business.
[4]
In
April 2004, he was detained by the Sri Lankan army and interrogated as to his
involvement with the Liberation Tigers of Tamil Elelam (LTTE). They robbed him,
beat him and emptied his motorcycle of gasoline. He was constantly stopped and
extorted by the army as he ran his business. The Eelam Peoples Democratic
Party, and Karuna paramilitary groups also stopped and extorted him.
[5]
In
April 2009, the applicant was again stopped by members of the army who ordered
him to buy them alcohol. Fifteen days later, he was extorted for 1,000 rupees.
Two days later, an army officer required him to buy marijuana.
[6]
In
September 2009, the applicant sold his [redacted] but the extortion continued.
[7]
The
applicant fled Sri Lanka for Thailand on May 27, 2010, where he secured passage
aboard the MV Sun Sea. He alleges the military has since asked his wife
and brother about his whereabouts and have learned he is in Canada.
[8]
The
Sun Sea arrived in Canada on August 13, 2010. The applicant
claimed protection at that time. His claim was heard on May 30, 2012.
Board’s Decision
[9]
The
Board made its decision on September 13, 2012. The Board accepted the
applicant’s identity, summarized his allegations and indicated it had rejected
his claim on the basis of credibility and lack of well-founded fear. In the
alternative, the Board found that even if his story were true, he did not face
a risk of persecution under sections 96 or 97 or the Act. The Board found there
was neither compelling reasons nor a sur place situation and that under section
97, there was generalized risk.
[10]
The
Board noted a list of inconsistencies in the applicant’s story, including
regarding his involvement with the LTTE. The applicant had initially denied
having any experience with the group, but later admitted he had been offered
training by them as a child. When interviewed by the Canada Border Services
Agency (CBSA), the applicant’s brother and wife indicated he had [redacted]
LTTE members five times per month for a year. The Board concluded that on a
balance of probabilities, the applicant did have contact or involvement with
the LTTE. The Board then went on to catalogue other inconsistencies, such as
the applicant’s failure to claim protection in Thailand and various
interactions with the Sri Lankan state that indicated he was not a wanted
person. The Board noted the applicant had not engaged in criticism of the
government of Sri Lanka while abroad. Based on these inconsistencies, the Board
concluded on a balance of probabilities that the applicant’s fear was not
well-founded.
[11]
The
Board considered the alternative issue of change of circumstances in Sri Lanka. It canvassed country conditions evidence showing that after the defeat of the
LTTE in 2009, the treatment of Tamils in Sri Lanka had improved. The Board
considered an Amnesty International report regarding passengers of the Ocean
Lady and Sun Sea, but noted that this risk only applied to those
being suspected of being members of the LTTE and that some of the underlying
sources of the report were dated. The Board rejected the possibility of a sur
place claim on the basis there was no indication the applicant had been
involved in activities in Canada in support of the LTTE. The Board noted that
at the time of the decision, it had been three years since the applicant had encountered
problems with the Sri Lankan government. The Board concluded the applicant
would not be identified as an LTTE member because circumstances had improved
for Tamils not suspected of being LTTE members. The Board noted the return of
refugees to Sri Lanka from India and other countries.
[12]
The
Board went on to consider a report by the Danish Immigration Service on
conditions in Sri Lanka that concurred with the above conclusion that the
conditions facing Tamils had improved with the exception of those being
suspected of membership in the LTTE.
[13]
The
Board next considered the treatment of failed asylum seekers returning to Sri Lanka. The Board concluded that with the exception of those with outstanding criminal
charges or suspected of links with the LTTE, these returnees were treated like
any other Sri Lankan citizen entering Sri Lanka.
[14]
The
Board held that the applicant did not have a profile that would be perceived as
having ties to the LTTE. There was no evidence that the applicant having
arrived via the Sun Sea had led to being found to have links to the
LTTE. There was no evidence the applicant had engaged in activities that would
put him under suspicion of the Sri Lankan government. The Board therefore
rejected the sur place claim.
[15]
The
Board also analyzed the applicant’s claim under compelling reasons and
concluded that he had not been mistreated during his detention in 2004 and
there were therefore no compelling reasons to prevent the return of the applicant
to Sri Lanka. The Board then went on to repeat its conclusions concerning the
positive post-war picture in Sri Lanka since the end of the civil war.
[16]
Finally,
the Board considered generalized risk as an alternative issue under section 97
of the Act. The applicant had alleged he was a victim of extortion and feared
becoming a victim of crime upon return due to the perception of wealth
attaching to being returned from a Western country. The Board concluded this
was a generalized risk faced by a sub-group of the Sri Lankan population; the
wealthy or those perceived as wealthy.
[17]
For
these reasons, the Board rejected the claim.
Issues
[18]
The
applicant submits the following points at issue:
1. Did the Board
make contradictory findings with respect to the applicant’s profile?
2. Did the Board
fail to give the applicant notice that it considered delay to be an issue in
his claim?
3. Did the Board err
by ignoring the evidence concerning the sur place claim?
4. Did the Board
fail to consider the suspicions of the Canadian authorities with respect to the
applicant’s connection to the LTTE?
5. Did the Board use
the wrong tests in analyzing compelling reasons?
[19]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board err
in rejecting the applicant’s claim?
3. Did the Board
violate procedural fairness?
Applicant’s Written Submissions
[20]
The
applicant makes five arguments against the Board’s decision. He argues that the
reasonableness standard applies except in the case of procedural fairness and
errors of law.
[21]
First,
the applicant argues it is contradictory for the Board to conclude on one hand
that he had in fact been involved with the LTTE and on the other hand, that he
would not be suspected by the Sri Lankan government of such involvement. The
Board clearly accepted the risk for suspected supporters. The Board made a
clear finding of such involvement but did not apply its own findings concerning
the risk that this involvement generated.
[22]
Second,
the applicant argues the Board never indicated delay in claiming would be an
issue in his claim. The Board’s screening form did not identify this issue. The
Board discussed the applicant’s delay in its credibility finding. The failure
to give notice violated the right to a fair hearing.
[23]
Third,
the applicant argues the Board did not seriously consider his argument that
being a passenger on the Sun Sea would result in being suspected
of LTTE involvement by the Sri Lankan government. This risk exists independent
of any credibility concerns. The applicant made lengthy and detailed
submissions on this point, supported by a plethora of documentary evidence. The
Board dismissed this argument in a single paragraph and only identified the
issue of whether the applicant had been identified as having links to the LTTE
at that time, not whether he would be identified as such upon return. This
displays a lack of understanding of a crucial element of the claim.
[24]
Fourth,
the applicant argues the Board ignores how the Canadian government itself
previously suspected him of being connected to the LTTE. He and his family
members were interviewed at least 11 times by the CBSA concerning the LTTE. The
applicant was detained for months and the Minister defended this detention
based on a reasonable suspicion of inadmissibility on security grounds. The
issue is not whether such connections exist, but whether the Sri Lankan
government would suspect the applicant of such involvement. The Board failed to
even consider this argument.
[25]
Finally,
the applicant argues the Board applied the wrong test for compelling reasons
under subsection 108(4) of the Act. The Board’s reasons indicate it required
“egregious or atrocious” treatment, which is not the test from the text of the
Act or the case law. The Board was only concerned with past incidents and did
not consider the psychological effect of removal on the applicant. The Board
did not explain what weight it gave to the psychiatrist’s opinion in evidence.
This is an error of law reviewable on a correctness standard.
Respondent’s Written Submissions
[26]
The
respondent argues that reasonableness is the appropriate standard of review for
the Board’s findings and responds to each of the applicant’s arguments in turn.
[27]
First,
the respondent argues there is no contradiction in the Board’s finding that the
applicant was involved with the LTTE and its conclusion that he would not be
perceived as a member or supporter of the LTTE. If the Board thought the
applicant was a supporter of the LTTE, it would have considered exclusion under
Article 1F of the Convention. Contact or involvement does not equate to support
or membership. The applicant had no trouble interacting with the Sri Lankan
government before leaving Sri Lanka.
[28]
Second,
the respondent argues there was no violation of procedural fairness as delay in
claiming protection is an element of credibility. The screening form was
completed in 2010 but the hearing was not until 2012. The applicant was asked
about his failure to claim in Thailand at the hearing and this constitutes
adequate notice.
[29]
Third,
the respondent argues the Board properly considered the sur place claim.
The Board placed less weight on the Amnesty International report dealing with
risks for those on the Sun Sea due to its dated sources.
[30]
Fourth,
the respondent argues that the Canadian government concluded, based on the
evidence, the applicant was not a member or supporter of the LTTE. The
applicant’s argument would transform anyone detained by the Canadian government
in order to ascertain terrorist involvement into a sur place refugee.
The Board concluded that this treatment did not put the applicant at risk upon
re-entry to Sri Lanka.
[31]
Finally,
the respondent argues there was no error in the compelling reasons analysis
which was an alternative finding. The Board did consider the psychological
report, but it was based on the applicant’s own evidence of his past
experience, which the Board had concluded was not credible.
Analysis and Decision
[32]
Issue
1
What is the appropriate
standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[33]
It
is established jurisprudence that credibility findings, described as the
“heartland of the Board’s jurisdiction”, are essentially pure findings of fact
that are reviewable on a reasonableness standard (see Lubana v Canada
(Minister of Citizenship and Immigration), 2003 FCT 116 at paragraph 7,
[2003] FCJ No 162; Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12 at paragraph 46, [2009] 1 S.C.R. 339; Demirtas v Canada
(Minister of Citizenship and Immigration), 2011 FC 584 at paragraph 23,
[2011] FCJ No 786). Similarly, the weighing of evidence and the interpretation
and assessment of evidence are reviewable on a standard of reasonableness (see Oluwafemi
v Canada (Minister of Citizenship and Immigration), 2009 FC 1045 at
paragraph 38, [2009] FCJ No 1286).
[34]
In
reviewing the Board’s decision on the standard of reasonableness, the Court
should not intervene unless the Board came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at paragraph
47; Khosa above, at paragraph 59). As the Supreme Court held in Khosa
above, it is not up to a reviewing court to substitute its own view of a
preferable outcome, nor is it the function of the reviewing court to reweigh
the evidence (at paragraph 59).
[35]
It
is trite law that the appropriate standard of review for issues of procedural
fairness is correctness (see Khosa above, at paragraph 43). No deference
is owed to decision makers on these issues (see Dunsmuir above, at
paragraph 50).
[36]
Issue
2
Did the Board err in
rejecting the applicant’s claim?
The applicant has identified
three problems with the Board’s substantive consideration of his claim under
sections 96 and 97. I agree that these defects render the Board’s decision
unreasonable.
[37]
The
Board concluded that the applicant had “contact or involvement” with the LTTE
while simultaneously concluding that the Sri Lankan government would not
suspect the applicant of “membership or support” of the LTTE. The respondent’s
counsel goes to great lengths to distinguish between these two concepts. I
agree that it is possible in theory that not all contact would amount to
support. However, the Board itself offered no such fine-grained analysis. It
simply offered the two factual findings side-by-side without further comment.
Given the repeated findings by the Board that anyone merely suspected of
supporting or being a member of the LTTE would face an enhanced risk upon
return to Sri Lanka, failure to consider whether such “contact or involvement”
could trigger suspicion from the Sri Lankan government is a serious omission.
[38]
Regarding
the sur place claim, the applicant filed more than thirty pages of
reports concerning the attribution of LTTE links to passengers of the Sun
Sea and two past Board decisions where successful sur place claims
had been made out based on this exact risk. The Board’s evaluation of this
evidence is contained in a single sentence: “There is no evidence that the
claimant having come via the Sun Sea ship has consequently been found to have links
with the LTTE”. While the Board is presumed to have considered all the
evidence, I agree with the applicant that using this language to dismiss this
substantial and relevant evidence is an error.
[39]
I
also agree with the applicant’s concern that the verb tense in this sentence
suggests the Board was only concerned with whether the applicant had already
been linked to the LTTE based on travelling on the Sun Sea, as opposed to whether he would be linked with the LTTE upon return. It is
axiomatic that the refugee definition is forward-looking and the Board failed
to analyze that risk properly.
[40]
On
the point of the Canadian government’s own suspicion of the applicant for LTTE
involvement, the respondent’s counsel again makes arguments that are not
contained in the Board’s decision. The applicant’s submissions to the Board
clearly argued that the Canadian government’s suspicion was evidence of how the
Sri Lankan government would view him. The Board failed to consider this
argument in its reasons.
[41]
The
respondent’s argument that such a submission makes a sur place refugee
out of anyone detained by the Canadian government is hyperbole. All refugee
claims must be decided based on the facts of individual cases. The Canadian
government’s detention and interrogation of the applicant is relevant evidence
to whether the Sri Lankan government would do the same. It may very well not be
determinative, but it is of adequate significance that the Board must consider
it.
[42]
While
a reviewing court is required to supplement a tribunal’s reasons before
rejecting them, that does not mean the court must substitute itself for the
tribunal and determine the merits on its own motion (see Szabo v Canada (Minister
of Citizenship and Immigration), 2012 FC 1422 at paragraph 11). Accepting
the respondent’s arguments on the factual irrelevance of the Board’s finding
regarding the LTTE, the applicant’s passage on the Sun Sea and the Canadian government’s suspicion of him would amount to such a substitution.
[43]
While
I appreciate that the Board was faced with a substantial and complex record in
a case with significant public profile, there are serious omissions in the
Board’s decision that bring it into conflict with the Dunsmuir above, values
of transparency, justification and intelligibility. It is therefore
unreasonable.
[44]
Given
my decision on this issue, I need not consider the procedural fairness argument
or the issue relating to the test applied in the compelling reasons analysis.
[45]
The
application for judicial review is therefore granted, the Board’s decision is
set aside and the application is referred back to a different panel of the
Board for redetermination.
[46]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted, the Board’s decision is set aside and the application is referred back
to a different panel of the Board for redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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:
(a)
the person has voluntarily reavailed themself of the protection of their
country of nationality;
(b)
the person has voluntarily reacquired their nationality;
(c)
the person has acquired a new nationality and enjoys the protection of the
country of that new nationality;
(d)
the person has voluntarily become re-established in the country that the
person left or remained outside of and in respect of which the person claimed
refugee protection in Canada; or
(e)
the reasons for which the person sought refugee protection have ceased to
exist.
(2) On
application by the Minister, the Refugee Protection Division may determine
that refugee protection referred to in subsection 95(1) has ceased for any of
the reasons described in subsection (1).
(3) If
the application is allowed, the claim of the person is deemed to be rejected.
(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.
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72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle
y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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 :
a)
il se réclame de nouveau et volontairement de la protection du pays dont il a
la nationalité;
b)
il recouvre volontairement sa nationalité;
c)
il acquiert une nouvelle nationalité et jouit de la protection du pays de sa
nouvelle nationalité;
d)
il retourne volontairement s’établir dans le pays qu’il a quitté ou hors
duquel il est demeuré et en raison duquel il a demandé l’asile au Canada;
e)
les raisons qui lui ont fait demander l’asile n’existent plus.
(2)
L’asile visé au paragraphe 95(1) est perdu, à la demande du ministre, sur
constat par la Section de protection des réfugiés, de tels des faits
mentionnés au paragraphe (1).
(3)
Le constat est assimilé au rejet de la demande d’asile.
(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.
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