Date:
20130729
Docket:
IMM-10063-12
Citation:
2013 FC 830
Ottawa, Ontario,
July 29, 2013
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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KENGESWARAN THANAPALASINGAM
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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. INTRODUCTION
[1]
This
is the judicial review of a decision by a member [Member] of the Refugee
Protection Division [Division] dismissing the claim for refugee status and/or
protection of the Applicant, a passenger on the MV Sun Sea. The particular
focus of this judicial review is on the sur place claim.
II. BACKGROUND
[2]
The
Applicant is a 30 year old male Tamil from the Jaffna district of Sri Lanka.
The Applicant’s narrative outlines continuing troubles from the mid-1980s with
the Libertarian Tigers of Tamil Eelam [LTTE] – largely attempts to recruit him
in one way or another.
[3]
In
April 2009 the Applicant fled the area in his fishing boat, was stopped by the
Navy and placed in an Internally Displaced Persons [IDP] camp. He claimed that
he had to pay a bribe and was beaten by authorities so he fled the camp. After
being questioned by the Karuna Group twice, he fled to Thailand and eventually boarded the MV Sun Sea for Canada.
[4]
The
Member found a number of credibility concerns, none of which are attacked in
this judicial review and need not be canvassed here.
The Member did
find that the Applicant was from Sri Lanka and that he had arrived on the MV
Sun Sea. The issue was whether the Applicant is at risk should he be returned
to Sri Lanka because of his profile, including travel on the MV Sun Sea.
[5]
The
Member found insufficient evidence of a nexus to Convention grounds. The Member
further found that the Applicant did not fit the UNHCR’s list of groups of persons
who are at risk in Sri Lanka. Most specifically, the Member found that the
Applicant was not linked to the LTTE nor was there persuasive evidence that the
Applicant was viewed in Sri Lanka as a LTTE sympathizer and on a balance of
probabilities would not be viewed as an LTTE supporter should he be returned to
Sri Lanka today.
[6]
The
Member then does a detailed analysis of the changed conditions in Sri Lanka. While recognizing some problems with the changes in Sri Lanka, the Member
concludes that Tamils are not being targeted solely on ethnic grounds.
[7]
With
respect to the sur place claim, the Member considered the conflicting
evidence about the RCMP assisting the Sri Lankan authorities and preferred a
declaration by a RCMP officer to that of press reports.
[8]
The
Member’s principal conclusion is that the Sri Lankan government would not
perceive the Applicant to be a member or supporter of the LTTE based
exclusively on his travel on the MV Sun Sea. That conclusion is based on the
Sri Lankan government’s acknowledgement that not all passengers on the MV Sun
Sea had ties to the LTTE.
[9]
Finally,
the Member concluded the decision by summarizing that, on a balance of
probabilities, there is not a serious possibility that the Applicant will be
personally subject to persecution, or have a risk to his life or of cruel and
unusual treatment or punishment or torture by any authority in Sri Lanka. Therefore, the sur place claim was dismissed.
[10]
The
Applicant argues that 1) the Member asked the wrong question and failed to consider
evidence, and 2) the Member applied the wrong legal standard. The issues are
essentially intertwined.
III. ANALYSIS
A. Standard of Review
[11]
The
issue of asking the wrong question or applying the wrong standard is a legal
one which is subject to the correctness standard of review (Canada (Minister of Citizenship and Immigration) v B377, 2013 FC 320, 2013 CarswellNat
1338).
The issue of the
adequacy of evidence to sustain the decision is subject to the reasonableness
standard of review (SK v Canada (Minister of Citizenship and Immigration),
2013 FC 78, 2013 CarswellNat 207).
B. Relevant Question
[12]
The
Applicant argues that the Member asked the wrong question in considering
whether all members of the MV Sun Sea would be seen as LTTE supporters rather
than asking whether this individual would be at risk of being suspected as a
LTTE supporter.
[13]
With
respect, this is an unfair characterization of what the Member did. In the
analysis of the individual’s circumstance, the Member had to deal with the
broader question of whether all passengers on the MV Sun Sea were viewed by Sri
Lankan authorities as tainted by association with the LTTE. On this point the
Member noted conflicting evidence but accepted more recent statements and
events as persuasive that those authorities did not view all passengers in the
same light.
[14]
Having
concluded that there was no blanket view concerning the passengers’ association
with the LTTE, the Member went on to consider the Applicant’s particular
circumstances.
[15]
In
so doing the Member had regard to the Applicant’s profile earlier described
where the Member concluded that in Sri Lanka, prior to the MV Sun Sea trip, the
Applicant was not viewed as an LTTE supporter.
[16]
One
cannot and should not divorce the Member’s conclusions on the Applicant’s
profile for purposes of the sur place claim from the conclusions about
profile prior to the Applicant leaving Sri Lanka.
C. Legal Standard
[17]
The
Applicant complains that the Member did not refer to a statement by the Sri
Lanka High Commission to the effect that most passengers on the MV Sun Sea are
hardcore LTTE.
It is trite law
that the RPD does not have to refer to each piece of evidence. Here the
statement was made before the MV Sun Sea arrived in Canada. The Member in fact
refers to it. A fair reading of the decision is that the Member considered more
recent statements and actions of Sri Lankan authorities. No evidence was
ignored and there was a reasonable basis for the Member’s decision.
[18]
On
the issue of the legal standard applied, the Applicant says that the Member
imposed a requirement by using the word “would”. The allegedly offending
paragraphs are:
113 I have considered how the claimant’s travel on
the Sun Sea ship would be viewed by Sri Lankan authorities should it come to
their attention in the future, and I find, on a balance of probabilities, that
the Sri Lankan government would not perceive the claimant to be a member
or supporter of the LTTE on the basis of his travel on the Sun Sea ship alone.
114 He was not perceived by the Sri Lankan
government to have ties to the LTTE prior to his departure from Sri Lanka, and
given the acknowledgement by the Sri Lankan government and an expert in the
field of terrorism, that not all persons on the Sun Sea ship have ties to the
LTTE and therefore although the claimant may be questioned in regard to his
travel on the Sun Sea ship, the claimant will not face an increased risk
simply because of his mode of travel. Therefore, there is no reasonable
expectation that the claimant would automatically be presumed to
have ties to the LTTE by the Sri Lankan government upon his return to Sri Lanka.
[…]
116 I have insufficient evidence that the claimant would
face a serious possibility of persecution, or would likely be
subjected personally to a risk to his life, or a risk of cruel and unusual
treatment or punishment or to a danger of torture (section 97) by authorities
in Sri Lanka.
[Emphasis added by
Court]
[19]
I
cannot find any merit in the Applicant’s proposition. The words used must be
viewed in context – the word “would” has both a degree of certainty in some
contexts and a degree of likelihood in other contexts. In the present
circumstances the Member was speaking in terms of the reasonable likelihood,
not the absolute certainty.
[20]
The
conclusion reached by the Member is nothing more than that on a balance of
probabilities, there is not a serious possibility of risk. The analytical
framework requires a member to go from one conclusion of fact based on balance
of probability to another and so forth before reaching the final test of
possibility of risk established on the normal civil standard.
[21]
I
can find nothing wrong in the Member’s approach, analysis or legal standard.
IV. CONCLUSION
[22]
Therefore,
this judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“Michael L. Phelan”
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