Docket: IMM-4617-13
Citation:
2014 FC 1138
Ottawa, Ontario, November 26, 2014
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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RAVEENDRAN GOPALARASA
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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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JUDGMENT AND REASONS
I.
Overview
[1]
Raveendran Gopalarasa, the Applicant, is a
citizen of Sri Lanka applying for judicial review [JR] of a decision of the
Refugee Protection Division [RPD, Board] of the Immigration and Refugee Board
of Canada rendered June 3, 2013 which determined he is not a Convention refugee
or a person in need of protection according to the criteria specified in
sections 96 and 97 of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA]. The application was commenced pursuant to section
72(1) of IRPA. The application is allowed for the following reasons.
II.
Facts
[2]
The Applicant is a citizen of Sri Lanka from Jaffna in the Northern Province of Sri Lanka, claiming refugee protection. He is a 35
year old Tamil male carpenter. In brief, there are two aspects to the risk of
persecution claimed, emanating from two separate sources.
[3]
First, the Applicant fears the Sri Lankan Army
(Army). He claims that he had some problems with the Army in the 1990s, and
that they came looking for him at his home in June 1997. They told his mother
to advise him to report to the army camp the next day. Instead, he fled to
Vavuniya and remained there.
[4]
Second, the Applicant fears the Eelam People’s
Democratic Party (EPDP), a Tamil paramilitary group. He claims that in April
2010, the EPDP kidnapped him in Vavuniya and demanded a substantial sum of
money. In November 2011, the EPDP located his new residence and attended there
to inquire about him. At that time, the EPDP representatives advised the house
owners that they were no longer interested in the money, but wanted his life.
[5]
The Applicant subsequently fled the country. He
applied for asylum in the United States and remained there for almost two
months, then proceeded to Canada and made a refugee claim here.
III.
Decision Under Review
[6]
The Board found that the Applicant was neither a
Convention refugee nor a person in need of protection under sections 96 and 97
of IRPA.
[7]
The Board found that the Applicant’s fear of the
Army was not well-founded for various reasons, including the following:
•
The Applicant was issued a Sri Lankan passport
and was allowed to proceed through airport security without any issue,
suggesting that there was no warrant for his arrest;
•
The encounter when the Army came to look for him
took place in 1997, more than 15 years ago, and before the war ended in May
2009;
•
Former LTTE members are being released by the
government;
•
The Applicant’s family lives in Jaffna, undisturbed;
•
There is no evidence that the Applicant was
involved with the LTTE in the past, or in anti-Sri Lankan government activity
while in Canada, or that the Sri Lankan government considers him a security
threat;
•
The Applicant abandoned his asylum claim in the U.S. to come to Canada;
•
His profile does not match any of the at-risk
groups identified by the UNHCR Eligibility Guidelines for Assessing the
International Protection Needs of Asylum-Seekers from Sri Lanka, 2012 [2012
UNHCR Guidelines];
•
Returning Tamils are subjected to the same
screening process, regardless of whether they are returning voluntarily or as
failed refugee claimants; and
•
The claimant did not provide corroborative
documentary evidence to support the contention that he was being sought or
would be arrested by Sri Lankan security forces if returned.
[8]
With respect to the Applicant’s claimed fear of
the EPDP, the Board found that any risk faced by the Applicant was a
generalized one, in that the threat was faced generally by others in the
country who are perceived to be wealthy or who have enough money to be targeted
for extortion. As such an individual, he was not a person in need of protection
under subsection 97(1). The Board Member noted that victims of crime,
corruption, or vendettas generally fail to establish a section 96 nexus.
IV.
Issues
[9]
The Applicant raises five issues in this
Application, arguing that the Board erred by:
A.
applying the incorrect legal test for refugee
status;
B.
erring in its treatment of generalized risk;
C.
assessing the Applicant’s subjective fear based
on his failure to await his refugee claim in the U.S.;
D.
ignoring crucial evidence; and
E.
improperly assessing the Applicant’s
credibility.
V.
Relevant Provisions
[10]
The relevant provisions of sections 96 and 97 of
IRPA are attached as Annex A.
VI.
Submissions of the Parties
A.
Wrong legal test
[11]
The Applicant contends that the Board applied an
incorrect legal test for refugee status, namely a “balance
of probabilities” rather than a “serious
possibility” of persecution test.
[12]
The Respondent, on the other hand, asserts that
the Decision, taken as a whole, applies the correct standard of proof. The
Board applied the civil standard of “balance of
probabilities” to measure the evidence supporting the factual
contentions, and the “serious possibility” of
persecution standard to measure the risk. Although the Board might have chosen
an unfortunate use of words to describe the test, it ultimately applied the
correct test in its conclusion, and arrived at the correct result.
B.
Assessment of generalized risk
[13]
With respect to the Board’s analysis of the
Applicant’s fear of persecution by the EPDP, the Applicant states that it erred
by failing to analyse this aspect of the claim under section 96. The Applicant
submits that the Board failed to consider the persecutory consequences of
having failed to accede to extortion demands by the EPDP, which would be viewed
by the EPDP as indicating opposition to their political agenda. As such, there
is a clear nexus to perceived political opinion, which was not addressed by the
Board.
[14]
The Respondent submits that the Board reasonably
noted that victims of crime, corruption or vendettas generally fail to
establish a link to one of the Convention grounds. Furthermore, when making a
claim on a Convention ground, membership in a group must be the primary cause
of the persecution. The fact that the Applicant was a Tamil was not the primary
cause of the persecution, and the EPDP was not interested in targeting the
Applicant for political reasons. The Respondent concludes that the Board’s
section 97 finding was reasonable, since being targeted for wealth is a
generalized risk. Similarly, where a claimant does not comply with a demand,
reprisals do not personalize the risk (Wilson v Canada (Citizenship and Immigration), 2013 FC 103 at para 7; Baires Sanchez v MCI,
2011 FC 993 at para 27).
C.
Assessment of subjective fear
[15]
The Applicant submits that the Board erred in
drawing a negative inference from the Applicant’s abandonment of his claim for
protection in the U.S., since the case law states that the presence of a
relative in Canada is sufficient reason not to seek protection in other
countries.
[16]
The Respondent submits that, in assessing
whether the Applicant’s fear was well-founded, it was open to the Board to take
into account that the Applicant abandoned his asylum claim in the U.S.
D.
Ignored evidence that directly contradicted
conclusions
[17]
The Applicant argues that the Board failed to
address contradictory evidence in the documentary record, including evidence
from the same document upon which it placed primary reliance with respect to
risk factors (the 2012 UNHCR Guidelines). Further, the Applicant submits that
the Board erred by ignoring other relevant evidence that directly contradicts
the conclusions it reached regarding the danger faced by Tamil males from
Northern Sri Lanka and the screening process for returning Tamils.
[18]
The Respondent submits that the Board, albeit
briefly, did note that the situation in Sri Lanka presented challenges,
referring to four cases of detained returnees. In any event, the Board is
assumed to have weighed and considered all the evidence presented to it unless
the contrary is shown, and the Board is not required to refer to contradicting
evidence where that evidence is found in the general country condition
documentation.
E.
Improperly assessing the Applicant’s credibility
[19]
The Applicant further submits that the Board
erred in its assessment of the Applicant’s credibility. In its assessment of
well-founded fear, the Board stated that credibility was an issue, and made the
following problematic credibility findings, which:
•
took too simplistic an approach by drawing
negative inferences from the Applicant’s ability to apply for a passport and
get through airport security;
•
defined the category of “similarly
situated persons” too narrowly, by taking into consideration that the
Applicant’s family in Jaffna was undisturbed;
•
failed to explain why it required corroborative
documentation for the suggestion that the Applicant was being sought or would
be arrested by the Sri Lankan authorities; and
•
erred in drawing a negative inference from the Applicant’s
abandonment of his claim for protection in the U.S.
In any event, the Applicant contends that one
is left uncertain as to exactly which factors led to the credibility finding of
the Board.
[20]
The Respondent submits that the Board’s comment
that there were “serious doubts to the claimant’s
story” went to the heart of whether the Applicant’s claim was
well-founded. The Respondent submits that it was open to the Board Member to
take various factors into account in determining whether the Applicant’s fear
was well-founded, including that: there were no reprisals since his encounter
with the Army 15 years ago; he was able to obtain a passport and leave the
country without problems; his family had not suffered reprisals; he abandoned
his U.S. asylum claim; and he had not been politically involved since coming to
Canada.
[21]
The Respondent contends that the Board did not
rely on any of these factors going to the well-foundedness of the claim exclusively,
but rather assessed them cumulatively, unlike in Rayappu v MCI, FC
Docket IMM-8712-11 dated October 24, 2012 and B027 v MCI, 2013 FC 485, cases
which the Applicant relies on. Therefore, the Respondent contended that even if
one of these findings was problematic, the overall decision was nonetheless
reasonable.
VII.
Standard of Review
[22]
There are two different standards in this case.
Issues 1-3 raise questions of law and as such should be reviewed on a standard
of correctness: Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at para 44.
[23]
Issues 4-5 should be reviewed on a
reasonableness standard, which affords a greater degree of deference to the
decision-maker: Dunsmuir v New Brunswick, 2008 SCC 9 at para 51. When
applying the reasonableness standard of review, the Court may intervene only if
it is satisfied that the reasons of the tribunal are not “justified, transparent or intelligible” and that the
result does not fall “within the range of possible,
acceptable outcomes which are defensible in respect of facts and law” (Dunsmuir
at para 47).
VIII.
Analysis
[24]
It is my conclusion that the Board erred in each
of the five issues raised in this JR.
A.
Wrong legal test
[25]
The Board Member stated as follows in three different
places in the decision:
(i) ...the panel does not believe, on
a balance of probabilities, that the claimant is a wanted person by the
security forces of Sri Lanka.
(ii) ...the panel finds, on a
balance of probabilities, that the claimant would not face a serious risk
of harm from the government security forces upon return to Sri Lanka.
(iii) ...the panel does not believe
that he will be arrested, or harmed by government forces if he were to return
to Sri Lanka today, on a balance of probabilities.
[Emphasis added]
(Decision, Applicant’s Record [AR], p 12,
paras 13, 15, 23)
[26]
These statements apply the wrong test. The
Board should have applied the balance of probabilities standard with respect to
evaluation of the evidence to determine the facts, but the ultimate test to
determine the section 96 claim involves a lower standard of “serious possibility”. In doing so, the Board erred in
law.
[27]
The Board cannot set out a multiplicity of tests
– in this case, three misstatements of the test as above – and then cure those
errors by stating the test once correctly (Sekeramayi v MCI, 2008 FC 845
at para 17; Paramsothy v MCI, 2012 FC 1000 at para 32).
B.
Assessment of Generalized Risk: Failure to
consider section 96 persecution
[28]
The Board found that the EPDP extortion was a
generalized risk. However, extortion is not what the Applicant stated he
feared. Rather, the Applicant was clear that he feared the persecutory risk of
failing to comply with extortion. The Applicant stated to the Board, “They also told him that we do not need his money any longer
but we need his life. Whatever we need we will kill him” (Hearing transcript,
AR, p 578) and his counsel noted in submissions to the Board:
…the evidence does suggest that the green
light has been given to these groups to extort Tamil businessmen, not Sinhalese
businessmen. That this extortion is still based on race and ethnicity,
perceived political opinion which brings you right into the Convention refugee
definition. It’s not a generalized risk.
(Hearing transcript, AR, p 600)
[29]
The Board member erred in considering the fear
only under section 97, and deeming it a generalized risk, instead of
considering the Applicant’s nexus to Convention grounds (i.e., perceived
political opinion based on refusal to comply with the demands of the EPDP).
[30]
This fear of the Applicant was articulated not
only at the hearing, but also previously, in written statements of the
Applicant. For instance, in his March 2012 Personal Information Form (PIF),
the Applicant stated, “These gunmen told the house
owners that they did not want the money anymore but my life now.… I fear that
if I return to Sri Lanka I will have problems with the EPDP as I did not pay
them the money demanded” (PIF Narrative, AR, p 29, paras 5-6).
[31]
Despite the Board Member’s finding in this
matter that the risk by the EPDP was a generalized one, the RPD should have
conducted a section 96 analysis, as there was evidence that the Applicant’s
risk in this regard was based on ethnicity or perceived political opinion.
Unlike in Pararasasingam v MCI, 2013 FC 805, where the Board was found
to have reasonably analyzed nexus in regard to a Tamil from Sri Lanka who
claimed he had been subjected to threats and extortion from the EPDP, the Board
in this case did not conduct an analysis of whether the Applicant had
established a nexus to a Convention ground. A finding that a risk is generalized
does not prohibit a finding of persecution on the basis of one of the
Convention grounds: See Dezameau v MCI, 2010 FC 559 at paras 23, 31; Josile
v MCI, 2011 FC 39 at para 11.
C.
Assessment of Subjective Fear
[32]
The Board found that the Applicant did not have a
subjective fear of persecution because he could have claimed refugee status
elsewhere, noting that he has a sister in Norway, and remained in the U.S. for
two months. It stated that the delay to claim refugee status points to a lack
of subjective fear of persecution.
[33]
The jurisprudence, however, is clear that
attempting to reunite with family is a valid reason for a refugee claimant not
to seek protection in the first country in which they arrive en-route to
Canada: See Ay v MCI, 2010 FC 671 at paras 39-40; Paramananthan v MCI,
FC Docket IMM-6206-09 dated November 16, 2010; Rivera Mejia v MCI, 2011
FC 1265 at para 9.
[34]
In this case, the Board drew a negative
inference from the Applicant’s abandonment of his claim in the U.S. The Board noted that the Applicant was detained in the U.S. However, what the Board
failed to note is that the Applicant could not leave the U.S. because of this detention, and that as soon as he was released, he left the U.S., making his way to Canada, which was his intention from the start of his journey in Sri Lanka. Indeed, the Applicant had a brother in Canada. The Applicant’s oral testimony
emphasized that he never intended to seek asylum status in the U.S. (see Certified Tribunal Record [CTR], pp 582-588), where he states in summation to
detailed examination and cross-examination on the subject:
COUNSEL: I want to know on that issue, sir,
when you were leaving Sri Lanka what was your intention, like where were you
intending to go? Did you have any plans?
CLAIMANT: It’s a plan to come to Canada
COUNSEL: Okay. And is there any reason why
you were planning to come to Canada?
CLAIMANT: There were two reasons. One agent
told me, advised me that you can go to Canada. Number two my brother was here.
COUNSEL: Okay. So had you not been arrested
by the authorities in the United States would you have made a refugee claim
down there?
CLAIMANT: No, I wouldn’t have.
[CTR, p 588]
[35]
It appears that the claimant’s testimony was
overlooked by the Board when it found that the Applicant “abandoned the opportunity for asylum in the U.S.”, and that someone who is truly fearful would “claim
refugee status at the first opportunity”. In my view, the Board erred in
law by failing to consider, in its assessment of subjective fear, that the
Applicant’s reason for abandoning his opportunity for asylum in the U.S. was that he had a brother in Canada. Moreover, the Board should have considered the reason for
the time the Applicant spent in the U.S., as well as the Applicant’s intention
to claim status in Canada from the outset.
[36]
The next two items are reviewable on a
reasonableness standard, as discussed above, and will be reviewed briefly,
since, having determined that the Board erred on Issues 1-3, these final issues
are not necessary to decide the case. However, they should nonetheless be
heeded in the reconsideration of this matter.
D.
Ignoring evidence that directly contradicted
conclusions
[37]
In reaching its conclusion that the Applicant’s
fear of the Army was not well-founded, the Board found that the Applicant’s profile
was not one of the at-risk profiles in the 2012 UNHCR Guidelines (CTR, pp
134-175).
[38]
However, in the very next section of the
Decision, dealing with risk by being a returnee to Sri Lanka, the Board Member
failed to cite other evidence in the same 2012 UNHCR Guidelines of detention,
ill-treatment, and torture of former Sri-Lankan (particularly Tamil)
asylum-seekers after they were forcibly returned to Sri Lanka (CTR, p 141).
[39]
The case law is clear that the Board does not
need to deal with every piece of documentary evidence – far from it: See Cepeda-Gutierrez
v MCI, [1998] FCJ No 1425 at para 16; Florea v Canada (MEI), [1993] FCJ No 598 at para 1 (CA). However, what is also clear from the
jurisprudence is that contradictory evidence should not be overlooked. This
has to be particularly so with respect to a key document relied upon by the
Board to reach its conclusion that the claimant will not be persecuted in his
country of origin. To leave out references from the same document used to
arrive at the opposite conclusion is to take a proposition out of context and
show only half the picture.
E.
Assessment of credibility
[40]
The Board member states that “there are serious doubts to the claimants story”, but
it is not clear what these doubts are. The Applicant suggests that there are
four particular issues that the Board Member may be referring to, and refutes
all of these (the fact that (i) the Applicant was able to obtain a passport and
get through airport security, (ii) the Applicant’s family members were similarly
situated but never persecuted, (iii) the Applicant did not produce
corroborating evidence for much of his claim, and (iv) the Applicant did not
await his asylum claim in the U.S.). However, it is not known whether these
were indeed the particular elements that gave the Board member doubts with
respect to credibility. The case law states that credibility findings against
the applicant must be clearly set out: See Hilo v Canada (Minister of Employment and Immigration), [1991] FCJ No 228 (FCA); Cooper v
MCI, 2012 FC 118 at para 5. In reading this decision, it is unclear which
findings of the Board in its analysis of well-founded fear refer to an
objective basis for fear, and which refer to credibility.
IX.
Conclusion
[41]
Given that five issues were raised, and all five
had problematic elements, including errors of law that must be reviewed on a
correctness standard, this application for judicial review is allowed and will
be sent back for reconsideration by a differently constituted panel.
[42]
No questions were proposed for certification,
and none arose.
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