Docket: IMM-1834-13
Citation:
2014 FC 987
Ottawa, Ontario, October 16, 2014
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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GEROSEKUMAR SUNTHARALINGAM
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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]
This is an application for a judicial review of
the decision of the Immigration and Refugee Board, Refugee Protection Division
[RPD or the Board], dated January 30, 2013, which concluded that Gerosekumar
Suntharalingam [the applicant] was not a Convention refugee under section 96
nor a person in need of protection under section 97 of the Immigration and
Refugee Protection Act, SC 2001, c 27 [the IRPA]. The application is
brought pursuant to section 72 of the IRPA.
[2]
For the following reasons, this application for
judicial review is allowed.
II.
FACTUAL BACKGROUND
[3]
The applicant is a 29 year-old Tamil male from
Trincomalee, in the north of Sri Lanka. He claims that his family has suffered
significant hardship as a result of the ethnic conflict in Sri Lanka. In 1983, before the applicant was born, the Sri Lankan army looted and set fire to the
family home. That same year, his elder brother disappeared and to this day the
family does not know what happened to him.
[4]
In April 1995, the Liberation Tigers of Tamil
Eelam [LTTE] re-ignited the civil war by sinking two Sri Lankan navy ships in
the Trincomalee harbour. In the years that followed, the applicant was arrested
several times by the Sri Lankan security forces, detained, interrogated and
subjected to physical abuse.
[5]
In 2002, the army arrested the applicant and his
two brothers after a rally protesting the deaths of ten Tamil civilians, who
were killed by the Special Task Force [STF] of the Sri Lankan police. The
applicant and his brothers were beaten and released after his father bribed the
soldiers with money and his mother’s jewellery.
[6]
On April 20, 2003, the applicant was arrested
during a roundup, along with about 50 other students from his former school. He
was interrogated, handcuffed and suspended from a cross bar and beaten with
clubs. His school principal was able to have him released.
[7]
On January 7, 2006, someone detonated a claymore
mine in the applicant’s neighbourhood and injured members of the Sri Lankan
army. In response, the navy attacked innocent civilians. One navy personnel
used the butt of his gun to hit the applicant in his left forearm, causing a
severe fracture on both sides. The applicant was in the hospital for a week.
[8]
On July 3, 2006, the army arrested the applicant
during a round-up and detained him for two days. The army interrogated the
applicant, stripped him nearly naked and beat him with sand filled plastic
pipes. As a condition of his release, they forced the applicant to sign a
statement written in Sinhala, which he did not understand. After photographing
the applicant, a navy man dashed the back of the applicant’s head against the
wall, causing him severe pain.
[9]
The army arrested the applicant again on August
14, 2008. The Eelam People's Democratic Party [EPDP] was also involved. They
questioned the applicant for a night and abused him. The next morning the applicant
was taken to the police station where he was also mistreated. Before letting
him go, the police photographed him and took his fingerprints.
[10]
On December 15, 2009, the Karuna group arrested
the applicant and kept him at a camp for three days. They did not physically
abuse him, but requested 350,000 rupees for his release. The applicant’s father
gave them cash and jewellery to satisfy the ransom. The applicant reported
twice as a condition of his release and was beaten one of those times.
[11]
One evening in December 2010, the navy stopped
the applicant and demanded money from him while pressing a handgun into his
chest. He handed over 1,800 rupees and his jewellery. He did not file a
complaint with the police because he feared the consequences that might follow.
[12]
On March 17, 2011, three men from the Pillayan
group stopped the applicant as he was driving. They got into his vehicle and
demanded 3,000,000 rupees. One of them stuck the barrel of a gun in the applicant’s
mouth. They accused the applicant of being an LTTE collaborator and held him
for two days. They released the applicant after he agreed to pay the requested
sum of money within one month.
[13]
The applicant went into hiding after that
incident. His uncle accompanied him to Colombo. On the way, the police stopped
him in Habarana and detained him briefly. They released him after his uncle
paid a bribe.
[14]
On May 2, 2011 the applicant left Sri Lanka with the help of an agent. He travelled through Dubai, Panama, Guatemala, Mexico and the United States [US] before arriving in Canada on August 3, 2011. The applicant was
arrested and detained when he first reached the US. At the advice of his agent,
he made a refugee claim in the US on May 30, 2011. He later abandoned his claim
to come to Canada where three of his brothers live. All three were accepted as
refugees in Canada after fleeing Sri Lanka.
III.
DECISION UNDER REVIEW
[15]
A hearing was held on January 21, 2013. On
January 30, 2013 the RPD issued a decision rejecting the applicant’s claim
under both sections 96 and 97 of the IRPA.
[16]
The RPD found that the applicant’s credibility
was insufficient to support a claim for refugee protection. The RPD noted that “all returnees are subject to criminal checks, and this could
entail detention of several days, depending on the day in the week in which a
returnee arrives in the country. However, this is indicated to apply equally to
all Sri Lankans of all ethnicities. The panel has found that the government
would not be concerned about the claimant as an opponent or critic of the
government, or as being associated with the LTTE. Thus, the panel finds that
this administrative delay in detention, even should it occur to the claimant,
would not be persecution” The RPD also found that the applicant “does not require Canada’s protection per se because he
is a Tamil from the north/east of Sri Lanka or because he would be a returning
failed refugee claimant.”
A.
Credibility
[17]
Overall, the RPD made a general credibility
finding against the applicant. It held: “[f]rom the
credibility concerns noted above, the Panel finds that the claimant’s evidence,
overall, is not credible, and insufficient to support the claimant’s claim for
refugee status.”
[18]
The RPD accepted that the applicant abandoned
his US claim to come to Canada because his three brothers live here. However,
it drew a negative credibility inference because it found that the decision to
abandon his US claim was inconsistent with the behaviour of someone who has a
subjective fear of persecution in Sri Lanka.
[19]
After noting that the applicant’s family
sponsorship application to immigrate to Canada was rejected in 2010, the RPD
also found that the applicant’s “true intention was and
is to come to Canada to live and join his relatives, rather than to flee
persecution.”
[20]
The RPD questioned the applicant’s failure to
provide certain corroborating documents, such as proof that he was in Sri Lanka during the period the alleged incidents took place. While it mentioned a letter
from a Canadian doctor that confirmed the applicant’s arm had been broken, it
also noted that that letter could not confirm when or how the incident occurred.
[21]
The RPD then reviewed the applicant’s testimony
in relation to each of the alleged incidents set out in his Personal
Information Form [PIF] narrative. It noted inconsistencies between the applicant’s
written description and testimony of several incidents, as well as his
explanations for these inconsistencies. Where the RPD found the applicant’s
explanation to be unsatisfactory, it drew a negative inference.
[22]
While the RPD did not draw a negative inference
from the applicant’s failure to provide corroborating documentation for his
2006 hospital visit, it noted that the applicant was “deprived
of an opportunity to buttress his refugee claim” (Reasons at para 22).
The RPD drew a “minor negative inference” from the
fact that the applicant omitted from his initial refugee claim that he received
medical treatment, in the form of pills, for an injury sustained during his
detention in July 2006. It also drew a “minor” negative
inference because the applicant referred to his 2006 arrest and detention only in
response to Question 37B (arrests) and not in response to Question 37C
(detention) of his initial claim. As a result of this omission, the RPD
concluded that the applicant’s reference to being detained was an “embellishment” of his initial story (Reasons at para
24). The RPD drew a negative inference from a number of inconsistencies which
are more particularly detailed later in these reasons.
B.
Protection as a Tamil from the north/east of Sri Lanka
[23]
The RPD stated that it reviewed the documentary
evidence, which is “clear that the government currently
prosecutes those individuals they suspect of being associated with the LTTE,
and those who oppose the government.” However, for reasons of credibility,
it concluded that the applicant “is not such an
individual.”
[24]
The RPD also found that while the applicant may
be subject to a detention for criminal checks if returned to Sri Lanka, such a detention applies equally to Sri Lankans of all ethnicities. Therefore, any such
delay would not amount to persecution. Finally, the RPD referred to the UNHCR
Guidelines for Assessing the International Protection Needs of Asylum Seekers
from Sri Lanka [UNHCR Guidelines] and concluded that the applicant does not
require refugee protection in Canada per se because he is a Tamil from
the north/east of Sri Lanka.
IV.
ISSUES
[25]
The applicant’s submissions raise several
issues:
1.
Whether the RPD erred in law by failing to address
and analyze a core ground of the applicant’s claim.
2.
Whether the RPD erred in law by failing to apply
the relevant law to the evidence.
3.
Whether the RPD engaged in a microscopic
examination of the evidence and made unreasonable credibility inferences and
conclusions by:
a.
Failing to consider the applicant’s explanation
for abandoning his asylum claim in the US
b.
Drawing negative credibility inferences from
inconsistencies between the applicant’s PIF and POE notes
c.
Drawing negative inferences because the applicant
did not provide corroborating written documentations
4.
Whether the RPD failed to assess whether
detention upon removal constitutes persecution.
[26]
The respondent’s submissions address the
following issues:
1.
Whether the Board addressed all the relevant
grounds and evidence, including
a.
Evidence regarding persecution on the basis of
family;
b.
The objective basis of the applicant’s claim as
a Tamil male from the north/east of Sri Lanka; and
c.
Evidence regarding whether detention amounts to
persecution; and
2. Whether
the Board’s credibility findings were reasonable.
[27]
I prefer the respondent’s characterization of
the issues.
V.
STANDARD OF REVIEW
[28]
In Dunsmuir v New Brunswick, 2008 SCC 9
at paras 57, 62, [2008] 1 S.C.R. 190 [Dunsmuir], the Supreme Court of
Canada held that a standard of review analysis is unnecessary where “the jurisprudence has already determined in a satisfactory
manner the degree of deference to be accorded with regard to a particular
category of question.”
[29]
It is well established that reasonableness is
the standard of review applicable to determinations of fact and mixed fact and
law by the RPD, such as assessments of credibility (see Ortiz Garzon v
Canada (Minister of Citizenship and Immigration), 2011 FC 299 at paras 24‑25
(available on CanLII); Goltsberg v Canada (Minister of Citizenship and
Immigration), 2010 FC 886 at para 16 (available on CanLII). And see Salazar
v Canada (Minister of Citizenship and Immigration), 2013 FC 466 at paras 35-36
(available on CanLII); and N.A.A.Z. v Canada (Minister of Citizenship and
Immigration), 2013 FC 1156 at para 17 (available on CanLII)).
[30]
In Dunsmuir, above at para 47, the
Supreme Court of Canada explained:
A court conducting a review for reasonableness
inquires into the qualities that make a decision reasonable, referring both to
the process of articulating the reasons and to outcomes. In judicial review,
reasonableness is concerned mostly with the existence of justification, transparency
and intelligibility within the decision-making process. But it is also
concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
VI.
ANALYSIS
A.
Did the Board consider all the relevant grounds
of the applicant’s claim and all the relevant evidence?
(1)
Persecution on the basis of family profile
[31]
The applicant submits that the RPD erred in not
considering a core aspect of the applicant’s refugee claim, namely his family
profile. The applicant relies on Canada (Attorney General) v Ward,
[1993] 2 S.C.R. 689 (available on CanLII), where the Supreme Court of Canada
stated that the Board has a duty to consider all possible grounds for a refugee
claim, including those not raised by the claimant (at para 80). The applicant
says that the Board had sufficient evidence to consider whether his family
circumstances put him at risk in Sri Lanka, including the fact that his three
brothers had been accepted as refugees in Canada.
[32]
The respondent submits that “the Board is not required to address potential grounds of
persecution where they are not supported by the evidence” (Casteneda
v Canada (Minister of Citizenship and Immigration), 2011 FC 1012 at para 19
(available on CanLII) [Casteneda]). The respondent also questions
whether the Board had any evidence before it regarding the successful claims of
the applicant’s brothers. Even if it did, the respondent submits that the Board
was not required to consider these claims because each claim must be determined
on its own merits (Bakary v Canada (Minister of Citizenship and Immigration),
2006 FC 1111 at para 10, 155 ACWS (3d) 161).
[33]
Thus, the relevant question is whether, in light
of the evidentiary record, the RPD’s failure to explicitly consider the applicant’s
family profile was reasonable. The applicant’s PIF states that the Sri Lankan
army looted and set fire to his family’s home during the 1983 anti‑Tamil
riots. He also mentions that his older brother disappeared following the riots
and has never been found. The applicant’s PIF also notes that two of his
brothers were arrested with him in 2002. He does not make any additional
references to his family or the authorities’ perception of their relation the
LTTE.
[34]
In the Family Information section of the PIF,
the applicant wrote the names of his three brothers who were accepted as
refugees in Canada. At the hearing, the applicant answered “because my brothers are here” when the Board member
asked him why he wanted to come to Canada. The member made no further
inquiries.
[35]
Based on the evidence that was before the Board,
it was reasonable for the RPD to conclude that the applicant does not face
persecution on account of his family profile. Aside from the disappearance of
his brother and looting of his family home, both of which occurred in 1983, it
was reasonable to conclude there was insufficient evidence to establish that the
applicant’s family continues to be targeted by the Sri Lankan authorities for a
perceived association with the LTTE. In addition the applicant put no evidence
before the Board regarding the specific details of his brothers’ successful
refugee claims.
[36]
In addition, in my view and in these
circumstances, I am not persuaded by the applicant’s argument regarding family
profile because the RPD was aware of the fact that the applicant’s brothers
were already in Canada and were accepted as refugees. This evidence was in the
applicant’s PIF.
(2)
Risk of persecution as Tamil male from the
north/east of Sri Lanka
[37]
The applicant submitted a significant amount of
documentary evidence in support of his claim. This evidence suggests that
Tamils who are perceived as having connection to the LTTE, such as through
family members, are at risk of being targeted by state actors (Freedom from
Torture Report at 1, TR at 130, UNHCR Guidelines at 27, TR at 227).
[38]
The question is whether the RPD reasonably
concluded that the applicant does not face a risk of persecution by reason of
his identity as a Tamil male from the north/east of Sri Lanka. The applicant
argues that despite the Board’s negative credibility findings, it was still
required to assess the objective basis of his claim with reference to the
remaining evidence.
[39]
It is well established that the RPD is presumed
to have weighed and considered all the evidence before it, unless the contrary
is shown (Florea v Canada (Minister of Employment and Immigration)
(1993), [1993] FCJ No 598 (FCA) (QL)). In this case, the RPD’s reasons clearly
state that it considered the documentary evidence regarding human rights in Sri Lanka. It found that this evidence demonstrates that “the
government currently persecutes individuals they suspect as being associated
with the LTTE” as well as failed refugee claimants who are returned.
However, for reasons of credibility, the RPD concluded that the applicant did
not meet either of these profiles (Reasons at paras 35-36). The RPD also
referred to the UNHCR Guidelines and concluded that the applicant’s profile as
a Tamil male from the north/east of Sri Lanka is not one of the profiles at risk
for persecution. On the record, this was a reasonable conclusion and ought not
to be disturbed on judicial review.
(3)
Whether detention on return amounts to
persecution
[40]
On this final issue, I have decided that
judicial review must be granted.
[41]
The issue of whether short-term security
detentions amount to persecution is fact specific and must be determined with
regard to the particular circumstances of each case (Sinnasamy v Canada (Minister
of Citizenship and Immigration), 2008 FC 67 at para 23, 164 ACWS (3d) 667 [Sinnasamy]).
Therefore, the applicant argues, the RPD erred by not considering whether the
detention he faces upon removal to Sri Lanka, in light of the evidence before
the RPD, would amount to persecution.
[42]
Referring to the RPD’s information request
regarding Sri Lanka, dated August 22, 2011, the RPD found that Sri Lankans of
all ethnicities, not just Tamils, face the possibility of detention upon return,
saying, “[h]owever, this is indicated to apply equally to
all Sri Lankans of all ethnicities.” Because it found the applicant
would not be targeted by the government for political reasons or for being
associated with the LTTE, the RPD found that any such delay would not amount to
persecution. This finding reasoning appears to be reasonable on its face,
because as the RPD noted, the policy of detaining returnees generally is
not discriminatory.
[43]
However, a reading of the document relied on by
the Board provides additional information. It refers to sources that say Tamils
are subjected to differential treatment upon return to Sri Lanka, and are at particular risk if they left the country illegally because the authorities may
automatically suspect these individuals have links to the LTTE. The evidence
before the Board also was that failed asylum seekers returnees of Tamil
ethnicity have been subjected to torture upon return.
[44]
Based on the evidence that failed asylum
seekers returnees of Tamil ethnicity have been subjected to torture, it was
unreasonable for the RPD to simply state that all returnees, regardless of
their ethnicity, are treated the same. This is not reflective of the record and
failed to address the issue of the applicant’s status as a failed refugee
claimant returnee. The RPD’s decision was reasonable insofar as the issue of detention
is concerned, but it is not reasonable insofar as the risk that failed
asylum seekers returnees of Tamil ethnicity would be tortured is concerned.
The RPD did not meet the requirement set out in Sinnasamy, above, namely
that it must consider the applicant’s “particular
circumstances” when assessing whether his possible detention would
amount to persecution as a failed refugee claimant which is a fact specific matter
to be determined with regard to the particular circumstances of each case.
[45]
The respondent submits that the Board reached a
reasonable conclusion on this issue because the documentary evidence showed
that the possibility of detention upon return is a policy that applies equally
to all persons returning to Sri Lanka. Furthermore, the respondent says that there
was no evidence to establish that the applicant faces a “serious
possibility of abuse if he is detained,” because the Board did not find
that he is a suspected LTTE member.
[46]
I reject this argument because it does not satisfactorily
address the risk of persecution faced by the applicant as a failed asylum
seeker returning to Sri Lanka.
[47]
In addition, the RPD appears to be saying that because
it did not believe the applicant was targeted by the authorities for a
perceived association to the LTTE, there is no need for it to consider whether
he is at risk in relation to the objective documentary evidence.
[48]
However this logic does not apply to the RPD’s
determination that the applicant does not fit the profile of failed refugee
claimants returning to Sri Lanka. This is what the RPD stated:
[37] The panel notes item 14.5 of Exhibit
R/A-1. This Board publication, dated August 22, 2011, sets out that all
returnees are subject to criminal checks, and this could entail detention of
several days, depending on the day in the week in which a returnee arrives in
the country. However, this is indicated to apply equally to all Sri Lankans of
all ethnicities. The panel has found that the government would not be concerned
about the claimant as an opponent or critic of the government, or as being
associated with the LTTE. Thus, the panel finds that this administrative delay
in detention, even should it occur to the claimant wound not be persecution.
[49]
In my respectful view, the RPD’s credibility concerns
cannot determine the issue of whether there is a serious possibility of
persecution of the claimant in his capacity as a failed refugee claimant
returnee. The applicant’s status in this regard is determined objectively by
the fact that he is a failed refugee applicant by virtue of having his claim
rejected by the RPD. It has nothing to do with credibility.
[50]
On review of the record before the RPD there was
evidence that failed refugee claimants returning to Sri Lanka have been both detained
and tortured (Freedom from Torture Report at 7; UNHCR Guidelines at 8; Risk
of failed asylum seekers of Tamil ethnicity upon return to Sri Lanka,). The
RPD did not refer to this issue not to any specific documents in this regard. Nor
does it address the specific concern of a returning failed refugee claimant. In
my respectful view, the RPD had a duty to consider whether there is a serious
possibility of persecution of the applicant as a failed refugee returnee.
[51]
As a result, I find the RPD’s conclusion does
not meet the Dunsmuir, above, requirements of “justification, transparency and intelligibility” (at
para 47). Given the seriousness of the potential consequences and the absence
of both consideration and reasoning on this point, in my view the RPD’s
decision is unreasonable and must be set aside.
B.
Are the Board member’s credibility findings
reasonable?
[52]
Having regard to my determination that the
decision must be remitted because regarding the serious possibility of the
applicant facing persecution in his capacity as a failed asylum seeker, it is
not necessary to decide the many credibility issues raised by the parties.
VII.
CONCLUSION
[53]
In light of the above, the decision must be set
aside and remitted to a different panel of the RPD for redetermination.
[54]
The applicant proposed a question only if I were
to reject the conclusion of Viafara v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1526, at para 6, 154 ACWS (3d) 455, as discussed in Casteneda,
above, at para 19. I do not see a question to certify in this case and therefore
no question will be certified.
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