Date: 20130722
Docket: IMM-6959-12
Citation: 2013 FC 805
Ottawa, Ontario, July 22, 2013
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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MAUTHARAN
PARARASASINGAM
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Applicant
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and
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THE MINISTER
OF CITIZENSHIP
AND
IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
I. Background
[1]
The Applicant, a citizen of Sri Lanka, of Tamil ethnicity,
was the owner of a small business on a small island in the north of Sri Lanka. He arrived in Canada, travelling through the United States, in 2010. He claimed
refugee protection in Canada on the grounds that he would be subject to
persecution at the hands of a paramilitary group, the Eelam People’s Democratic
Party (EPDP), which group had allegedly subjected him extortion and threats.
[2]
In a decision dated June 6, 2012, a panel of the
Immigration and Refugee Board, Refugee Protection Division (the Board)
dismissed the Applicant’s claim for protection under ss. 96 and 97(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA). The Board did not
believe that the Applicant had been extorted by the EPDP or that he was
suspected of being a supporter of the Liberation Tigers of Tamil Eelam (LTTE).
In any event, the Board concluded that any risk faced by the Applicant had no
nexus to a Convention ground and was a generalized risk.
[3]
The Applicant seeks to overturn this decision.
II. Issues
[4]
This judicial review turns on two issues:
1.
Is the Board’s credibility finding reasonable?
2.
Is the Board’s evaluation of nexus and generalized risk
reasonable?
III. Standard of Review
[5]
The Board’s decision – both as to the issue of credibility
and of nexus and generalized risk – is reviewable on a standard of
reasonableness. When reviewing a decision on a reasonableness standard, the
Court must determine “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190 [Dunsmuir]).
Reasonableness is also concerned with whether the decision displays
“justification, transparency and intelligibility” (Dunsmuir, above at
para 47).
IV. Credibility Finding
[6]
The Board expressed four reasons for concluding that the
Applicant’s story of extortion was not credible:
1.
The EPDP’s visits, as described by the Applicant, were
inconsistent with documentary evidence the Applicant presented. If the EPDP
wanted the Applicant to pay them, they would have succeeded or, if the did not,
they would have made threats and then made an example of the Applicant. They
would not have visited so many times without exacting more serious
consequences. In other words, the actions of the EPDP were not “typical”.
2.
The Board was not convinced that the extortion was
government-sanctioned simply because one sailor accompanied the EPDP. Further,
if the extortion was government-sanctioned then it was implausible that the
government would not have succeeded in extorting the Applicant.
3.
The Applicant did not mention extortion in his application
for asylum.
4.
The letter from the Applicant’s father, given under oath,
also did not make reference to extortion.
[7]
The Applicant disputes each of the four findings.
[8]
In my view, the Board expressed its credibility findings
clearly and they are reasonably grounded in the evidence before it.
[9]
First, the Board’s finding that the Applicant’s story was
not plausible was open to it. It is reasonable for the Board to draw inferences
with respect to the plausibility of a claimant’s story as long as the
inferences are reasonable and clearly described (Moualek v Canada (Minister
of Citizenship and Immigration), 2009 FC 539 at para 1, [2009] FCJ No 631; Aguebor
v Canada (Minister of Citizenship and Immigration) (1993), 160 NR 315,
[1993] FCJ No 732 (FCA)). These findings may be based on common sense and
rationality in view of the Applicant’s case as a whole.
[10]
In this particular case, the Board evaluated the
Applicant’s account of persecution by the EPDP, finding that it was not
plausible. The Board concluded that it was unlikely that the EPDP would not
have successfully extorted the Applicant or otherwise harmed him given the
number of times they visited him. The Board relied on an IRB document submitted
by the Applicant himself, which I excerpt briefly here (CTR at 557):
… the EPDP extorts money from
business owners in particular, as well as from truckers and fishermen. This
money is akin to “protection money”…Extortion starts in a polite way, with the
extorter stating that the money is needed for charitable purposes or as a
“contribution to the party” even though it is well known by all involved in the
transaction that this is not the case. Typically, no one shows up with a gun
and threatens an individual. If, however, the person is adamant about no
paying, then they will receive another visit. This visit would contain veiled
threats (e.g. mentioning where the children go to school…). If an individual
still refuses, the individual will have to be willing to suffer the
consequences. The individual who refuses to pay will be beaten up or killed.
The EPDP will make an example of someone who does not pay.
[References omitted.]
[11]
In my opinion, the Board reasonably relied on and directly
quoted this document to demonstrate that the Applicant’s account did not accord
with the usual practices of the EPDP. Although I agree that the Board misstated
the documentary evidence when it quoted this passage as saying that “typically
one shows up with a gun”, this inadvertent error is not material to the Board’s
reasoning. The Board relied on this particular document to demonstrate that the
Applicant’s account that he did not pay the EPDP and suffered no harm, aside
from losing some of his store goods, after up to eight visits from the EPDP,
was inconsistent with the documentary evidence.
[12]
Moreover, the Board did not unreasonably assume that the
EPDP has a particular modus operandi. The Board relied on documentary
evidence for the very general point that it was not plausible that the
Applicant had not suffered harm in any way after receiving so many visits from
the EPDP and not paying them. The Board did not attribute any particular method
to the EPDP or assume that the EPDP always acts in exactly the same way.
[13]
Second, it was open to the Board to find that in the
Applicant’s particular case, it was not plausible that the EPDP were acting
with state actors. Given the Board’s existing concerns regarding the
Applicant’s account, it was open to the Board not to be convinced by the
Applicant’s description of one sailor. Even if certain documents presented by the
Applicant state that the EPDP may sometimes act with state individuals or
operate with impunity, it was open to the Board to conclude that the Applicant
himself did not discharge his burden to demonstrate state complicity in this
case.
[14]
Third, it was open to the Board to take into account the
Applicant’s omission of the incident of extortion in his application form and
at the point of entry. The Applicant stated at the point of entry that the army
and navy took his vegetables and he was beaten for selling EPDP newspapers.
There was no mention of extortion demands. There is a large difference between
taking a few vegetables and demanding money from a business operator.
[15]
The Board is entitled to draw a negative inference from
differences between the Applicant’s statements at the point of entry and his
PIF narrative or subsequent testimony (Zeferino v Canada (Minister of
Citizenship and Immigration), 2011 FC 456 at paras 30-32, [2011] FCJ No
644). In this particular case, the Applicant omitted the critical incident to
his claim, which led him to flee the country. It was open to the Board to
reject the Applicant’s explanation that he was trying to brief as unreasonable,
in view of the centrality of this evidence to his claim.
[16]
Fourth, the Board’s analysis of the letter of the
Applicant’s father was reasonable. The Applicant’s father’s letter, given under
oath, only mentions general dangers articulated in very vague terms. The
Applicant argues that the Board erred by relying on what the document did not
say (Bagri v Canada (Minister of Citizenship and Immigration) (1999),
168 FTR 283 at para 11, [1999] FCJ No 784). In these particular circumstances,
where extortion is the specific risk, one would expect that the father would
refer to that risk. The letter, however, does not mention extortion, which, as
noted above, was crucial to the Applicant’s claim for protection. In the
context of other problems with the Applicant’s testimony, it was open to the
Board to draw a negative inference from this omission. Contrary to the
submissions of the Applicant, there are, in my view, situations where a
decision maker can rely on what a document does not say; this is one of those
situations.
[17]
In sum, each of the Board’s findings can be supported by
the evidence, even if another Board member or this Court might have viewed the
evidence differently.
[18]
I conclude on the credibility issue by commenting that the
Board’s decision must be reviewed as a whole. In this case, the Board
identified four problems with the testimony which, when taken together, led the
Board to conclude that it did not believe his story of extortion at the hands
of the EPDP. It is not sufficient for the Applicant to identify weaknesses or
alternative conclusions to be drawn from the evidence for each of the individual
findings; rather the reviewing court must look at the decision as a whole.
While any one of the four findings, on its own, might have been an insufficient
basis for an overall finding of lack of credibility, taken together, the Board
was entirely within reason to conclude that the Applicant’s story was not
credible.
V. Nexus and Generalized Risk
[19]
The Applicant asserts that the Board erred in finding that
the Applicant does not have a nexus to a Convention Ground and that he faces
only a generalized risk. The Applicant relies on the Board’s acceptance that
the Applicant is a Tamil and the documentary evidence describing persecution of
those of Tamil ethnicity. On this issue, the Applicant’s argument is interwoven
with the Board’s credibility findings. The Applicant accepts that, if the Court
upholds the Board’s credibility finding, his arguments with respect to nexus
and generalized risk are weakened.
[20]
Taking into account the Applicant’s evidence and
documentary evidence, the Board reasonably analyzed nexus. The Applicant
himself testified that he was targeted because he had money, and other people
who fished or farmed on a large scale were also targeted for extortion. The
Board reasonably rejected the Applicant’s documentary evidence since it related
to a group that was not the EPDP. Lastly, the Board relied on its own
documentary evidence that corroborates the Applicant’s statements that the EPDP
target individuals for money. The Board quoted documentary evidence stating
that “the target for these groups [of the EPDP involved in extortion] could be
anybody who has got money”.
[21]
I acknowledge that some documentary evidence suggests that
the EPDP may extort Tamils. However, in the Applicant’s particular case, he did
not discharge his burden to show that the extortion he experienced was
attributable to his Tamil ethnicity. Given the Applicant’s own testimony that
he was targeted for his money, it was open to the Board to conclude that no
nexus exists in this case.
[22]
I am also satisfied that the Board reasonably concluded
that the risk of extortion described by the Applicant is a generalized one –
and not one aimed at the Applicant, in particular. The Applicant testified that
he was targeted for money, as are other people who farm and fish. Documentary
evidence cited by the Board and relied on by the Applicant himself states that
the EPDP extorts from business owners generally, as well as truckers and
fishers. From the Applicant’s testimony, it was within a range of possible,
acceptable outcomes for the Board to conclude that this risk of crime is
prevalent and is therefore a generalized risk, even if the Applicant himself
was personally targeted (see, for example, Paz Guiffaro v Canada (Minister
of Citizenship and Immigration), 2011 FC 182, at para 32, [2011] FCJ No
222).
VI. Conclusion
[23]
In my view, the Board reasonably concluded that the
Applicant is not at risk under either s. 96 or s. 97 of IRPA. In sum,
the Board’s decision was reasonable and will not be overturned. Neither party
proposed a question for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
the application for judicial review is dismissed; and
2.
no question of general importance is certified.
“Judith
A. Snider”
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