Docket: IMM-2319-13
Citation:
2014 FC 1071
Ottawa, Ontario, November 13, 2014
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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RAGUNATHAN RAJARATNAM
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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
[1]
The applicant’s plea for protection was refused
by the Refugee Protection Division of the Immigration and Refugee Board of
Canada (the Board). He now seeks judicial review from this Court pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [the Act].
[2]
The applicant asks the Court to set aside the
decision against him and refer the matter to a different panel of the Board for
redetermination.
I.
Background
[3]
Ragunathan Rajaratnam (the applicant) is a Tamil
man from Cheddikulam in the district of Vavuniya, Sri Lanka. He arrived in Canada on November 25, 2011 and asked for protection at that time. He claims that the
government suspects him of having connections to the Liberation Tigers of Tamil
Eelam [LTTE] and has detained and tortured him several times because of that.
II.
Decision under Review
[4]
The Board refused the applicant’s plea on
February 19, 2013.
[5]
The Board accepted that the applicant had been
detained three times by the Sri Lankan Army or the Criminal Investigation
Department. However, the member did not believe that the applicant was tortured
since he did not seem distressed when describing this alleged treatment.
[6]
Further, the Board was not convinced that the
applicant was wanted by government authorities or suspected of having any
connection to the LTTE. Every time he was detained, he was released without
judicial involvement, which would not have happened if he was genuinely under
suspicion. Indeed, neither did he have any trouble getting a passport or
leaving the country, even though Sri Lankan security forces use airports to
apprehend LTTE sympathizers.
[7]
The Board also found that the applicant did not
match any other profile that the United Nations High Commissioner for Refugees
(UNHCR) has identified as being at risk. As such, there was no serious
possibility that the applicant would be persecuted if returned to Sri Lanka.
[8]
Indeed, the Board did not even believe that the
applicant was subjectively afraid that he would be persecuted. He had spent
four to five months detained in the United States and was released once an
immigration officer made a positive finding in a credibility interview.
Nevertheless, he abandoned his claim and came to Canada instead. The Board did
not believe that someone genuinely afraid of persecution in Sri Lanka would forfeit such a good chance of success and risk being deported by coming to Canada in those circumstances.
[9]
Next, the Board assessed whether the fact that
the applicant would be returning as a failed refugee claimant would change that
analysis. The answer was no. The Board said that few people have been detained
in such circumstances and those that have been were for outstanding criminal
charges. Further, even former LTTE members are being released from detention
now and the Board considered it unlikely that the security forces would now
detain someone they did not even suspect was connected to the LTTE.
[10]
Finally, the Board assessed the risk that the
applicant would be extorted or kidnapped. After the war ended, some rogue
elements of the security forces and government-allied paramilitaries have
turned to crime. They would sometimes target people they perceived to be
wealthy, including returnees from Western countries. However, the Board found
that this was a generalized risk precluded by subparagraph 97(1)(b)(ii) of the
Act.
[11]
Consequently, the Board found that the applicant
was neither a Convention refugee nor a person in need of protection.
III.
Issues
[12]
The applicant casts the issue broadly: “Did the Refugee Division err in fact, err in law, breach
fairness or exceed jurisdiction?”
[13]
The respondent replies that the applicant has
not shown that the decision was unreasonable.
[14]
Having reviewed the materials, the issues can be
restated as follows:
A.
What is the standard of review?
B.
Did the Board misunderstand any tests under
section 97 of the Act?
C.
Was the Board’s decision unreasonable?
IV.
Applicant’s Submissions
[15]
The applicant protests the decision on seven
grounds. First, he emphasizes that he was detained for long periods of time. He
states that the detentions themselves were persecutory, but the Board never
really considered that.
[16]
Second, the applicant says that the Board erred
by making a negative credibility finding based only on his demeanour (citing Lekaj
v Canada (Minister of Citizenship and Immigration), 2006 FC 909 at
paragraphs 16 and 17, [2006] FCJ No 1151 [Lekaj]). The applicant was
consistent every time he told his story and it should have been presumed to be true.
He also submits that this error requires a re-hearing since it is impossible to
know what the decision would have been otherwise.
[17]
Third, the applicant says that the Board erred
by assigning any significance to the manner by which he left Sri Lanka. He submits jurisprudence to the effect that the Board should not do that without any
evidence that the army and border control authorities shared information
(citing Yousuff v Canada (Minister of Citizenship and Immigration), 2005
FC 1116 at paragraph 9, [2005] FCJ No 1394 [Yousuff]). The Board’s
analysis ignores the fact that he was detained for ten hours on his return from
Ecuador and that he had to give them all the money he had with him before he
was released.
[18]
Fourth, the applicant says that the Board’s
dismissal of his subjective fear was wrong. He always intended to come to Canada because he had family here and the only reason for his sojourn in the United States was that he was detained. He was not responsible for any delay.
[19]
Fifth, the applicant says that the Board failed
to consider the cumulative effects of his detentions, the problems for failed
asylum seekers and the country’s general insecurity.
[20]
Sixth, the applicant argues that the danger
alleged was torture, so it was wrong for the Board to consider generalized
risk.
[21]
Seventh, the applicant says that the Board
mischaracterized the test under subsection 97(1) when it said that “the danger or risk must be such that it is more likely than
not that he or she would be tortured or subjected to other cruel and degrading
treatment.”
V.
Respondent’s Submissions
[22]
The respondent asserts that the Board’s decision
was reasonable.
[23]
The respondent says that the Board reasonably
concluded that the applicant was not on a watch list. That was fully supported
by the evidence and relevant to whether he was suspected of LTTE involvement.
Further, the Board did not ignore the claim that he was extorted, but rather dealt
with it squarely; that was but one finding among many that supported the
Board’s conclusion.
[24]
The respondent also states that the presumption
of truth was rebutted by the Board’s findings about the applicant’s demeanour. The
respondent submits that credibility findings should not be dismissed lightly.
[25]
Besides, the respondent says that the Board also
found that the applicant lacked any subjective fear. In its view, the Board
reasonably found that someone truly afraid of persecution would not abandon a
favourable chance for refugee protection in the United States.
[26]
The respondent then addresses the argument about
cumulative effects. The respondent says that the Board reasonably found that no
risk of discrimination existed, so there was nothing to be assessed
cumulatively. Anyway, this argument was not made to the Board.
[27]
Furthermore, the respondent says that the Board
did actually consider whether the past detentions were persecutory even without
the torture. It observes that the Board referred to a number of cases that
confirmed that detentions in and of themselves are not necessarily
determinative. It infers from this that the Board was alive to the issue.
[28]
With respect to section 97, the respondent
defends the Board’s analysis. As the Board found that the applicant had never
been tortured and there was no risk of that, it came down to paragraph
97(1)(b). The only potential risk there was of extortion and blackmail by criminal
enterprises, which was general. Finally, the respondent says that the Board
applied the right test and considered both danger and risk on a balance of
probabilities.
VI.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[29]
Where the jurisprudence has satisfactorily
resolved the standard of review, that analysis need not be repeated (see Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraph 62, [2008] 1 S.C.R. 190 [Dunsmuir]).
[30]
In two of his issues, the applicant impugns the
Board’s understanding of the test under subsection 97(1). Generally, where
jurisprudence has established a test, the Board must correctly understand the
law. However, its application of the law to the facts should be reviewed on the
reasonableness standard (see Ruszo v Canada (Minister of Citizenship and
Immigration), 2013 FC 1004 at paragraphs 20 to 22, [2013] FCJ No 1009; Paramanathan
v Canada (Minister of Citizenship and Immigration), 2012 FC 338 at paragraph
11, [2012] FCJ No 377).
[31]
Reasonableness is also the standard for every other
issue raised by the applicant. They are all findings of fact or mixed fact and
law that attract deference almost automatically (see Dunsmuir at
paragraph 53; Aguebor v Canada (Minister of Employment and Immigration),
[1993] FCJ No 732 (QL) at paragraph 4, 160 NR 315; Rahal v Canada (Minister of Citizenship and Immigration), 2012 FC 319 at paragraphs 22 to 40,
[2012] FCJ No 369).
[32]
That standard means that I should not intervene
if the Board’s decision is transparent, justifiable, intelligible and within the
range of acceptable outcomes (see Dunsmuir at paragraph 47). Put another
way, I will set aside the Board’s decision only if I cannot understand why it
reached its conclusions or how the facts and applicable law support the outcome
(see Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paragraph 16, [2011] 3 S.C.R. 708). As the
Supreme Court held in Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at paragraphs 59 and 61, [2009] 1 S.C.R. 339, a court reviewing for
reasonableness cannot substitute its own view of a preferable outcome, nor can
it reweigh the evidence.
B.
Issue 2 - Did the Board misunderstand any tests
under section 97 of the Act?
[33]
The applicant states that the Board used
generalized risk to excuse the danger of torture. If this were true, I agree
that it would be an error since generalized risk applies only to paragraph
97(1)(b) and torture falls under paragraph 97(1)(a).
[34]
However, that is not what the Board did. The
risk of which it spoke in its generalized risk analysis was the risk of
extortion and kidnapping by criminal enterprises formerly affiliated with the
government. The applicant has not seriously challenged that finding. That is
not torture within the meaning of article 1.1 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10
December 1984, 1465 UNTS 85. Therefore, this was properly assessed under subparagraph
97(1)(b)(ii), from which risks that are “faced generally
by other individuals in or from that country” are excluded.
[35]
The applicant also argues that the Board applied
too onerous a legal test under subsection 97(1). At paragraph 23 of its
decision, the Board set out its test:
The Federal Court has held that pursuant to IRPA
section 97(1): (i) there must be persuasive evidence (i.e. on a balance of
probabilities) establishing the facts on which a claimant relies to say that he
or she faces a substantial danger of being tortured or of having cruel and
unusual treatment or punishment inflicted upon his or her return; and (ii) the
danger or risk must be such that it is more likely than not that he or she
would be tortured or subjected to other cruel and degrading treatments.
[Emphasis added]
[36]
The applicant claims that item (ii) misstates
the test. He says he only needed to prove that there is probably some risk or
danger of unknown degree.
[37]
I disagree. In Li v Canada (Minister of Citizenship and Immigration), 2005 FCA 1 at paragraphs 36 and 39, [2005] 3
FCR 239 [Li (FCA)], the Federal Court of Appeal was expressly asked what
degree of risk was necessary for both paragraphs (a) and (b) of subsection
97(1). Mr. Justice Marshall Rothstein gave the following answers:
The requisite degree of danger of torture
envisaged by the expression “believed on substantial grounds to exist” is that
the danger of torture is more likely than not.
[…]
The degree of risk under paragraph 97(1)(b) is
that the risk is more likely than not.
[38]
To the extent that Justice Rothstein’s phrasing
is ambiguous and could support the applicant’s interpretation, it is worth
noting that the Court of Appeal affirmed the lower Court’s decision because it “agreed with the analysis and conclusion of Gauthier J.”
(Li (FCA) at paragraph 40). Madam Justice Johanne Gauthier had concluded
that “the danger or risk must be such that it is more
likely than not that he or she would be tortured or subjected to other cruel
and other degrading treatments” (see Li v Canada (Minister of
Citizenship and Immigration), 2003 FC 1514 at paragraph 50, [2004] 3 FCR
501). Those are almost the exact same words that the Board used.
[39]
Therefore, the Board correctly understood the
law.
C.
Issue 3 - Was the Board’s decision unreasonable?
[40]
Still, I am convinced that the Board’s decision
was unreasonable. I say this for several reasons.
[41]
First, the Board accepted that the applicant was
detained. The applicant was first detained for two months, the second time for
two weeks (from which he was only released with a bribe of 50,000 rupees) and
the third time for one month. He was also detained at the airport once for ten
hours. Although detentions are not necessarily determinative (see Paramanathan
at paragraphs 29 and 30), the Board does need to be attentive to them.
[42]
Here, these were long detentions and the
applicant’s testimony was always that he was asked questions about the 2008
bombing that happened near his house. The Board evidently accepted that at
paragraph 7, but said that he must have been cleared of suspicion since
otherwise he would not have been released.
[43]
I have difficulty understanding that reasoning.
For one thing, the Board did not refer to any evidence suggesting that the Sri
Lankan authorities permanently detain everyone who it cannot clear of suspicion
and my review of the record discloses none. Moreover, it seems to contradict
the Board’s finding that during each detention, the applicant was questioned
about whether he had any involvement in the 2008 claymore explosion. After all,
if a release from detention meant that he was cleared of suspicion the first
time, then why would the government have detained him twice more for long
periods of time? If the first two detentions were not enough to clear him of
suspicion, then what was special about the third one that gave the Board this
confidence? Alternately, if the government is detaining random Tamil men who it
has cleared of suspicion, then on what basis can the Board conclude that the
applicant would be safe from detention in the future? Notably, the 2012
guidelines from the UNHCR say that arbitrary detentions are commonplace
(tribunal record at page 188).
[44]
Second, the credibility finding was problematic.
Generally, I agree with an observation that Madam Justice Mary Gleason made in Rahal
at paragraph 42:
[T]he starting point in reviewing a credibility
finding is the recognition that the role of this Court is a very limited one
because the tribunal had the advantage of hearing the witnesses testify,
observed their demeanor and is alive to all the factual nuances and
contradictions in the evidence. Moreover, in many cases, the tribunal has
expertise in the subject matter at issue that the reviewing court lacks. It is
therefore much better placed to make credibility findings, including those
related to implausibility.
[Emphasis added]
[45]
However, credibility findings are not immune
from review. Here, the Board rejected the applicant’s testimony for only one
reason: “[h]is demeanor during the hearing was such that
the panel did not notice any outward distress relative to his treatment during
detentions by Sri Lankan authorities.”
[46]
Although I accept that the Board is entitled to
consider a claimant’s demeanour and that such findings are often difficult to
describe, it should usually not be the only reason for dismissing a person’s
claim (see Rahal at paragraph 45). There could be many reasons that an
applicant may not be as emotional as the Board would expect, including cultural
differences, translation issues or a stoic personality. This was a very
subjective reason to discard the applicant’s testimony (see Zacarias v Canada (Minister of Citizenship and Immigration), 2012 FC 1155 at paragraph 24, 419 FTR
135; Lekaj at paragraph 17).
[47]
Further, the Board gave no objective reason to
cast doubt on the applicant’s story. The applicant’s statements were always
consistent and the Board did not find that there was anything implausible about
his story. The applicant even showed his scars to the member (tribunal record
page 229):
COUNSEL: Do you have any scars or marks on your
body as a result of the army detention?
CLAIMANT: I have scars on my body, cigarette
burns scars.
COUNSEL: All right. Could you just hold up
your forearm like this so the Member could see it? I don’t know if you can
see that or if you want him to [sic] closer to you?
PRESIDING MEMBER: I see that, Counsel.
COUNSEL: You see it?
PRESIDING MEMBER: Yeah.
[Emphasis added]
[48]
Yet, the member never mentioned these scars or
explained why he ignored them. Essentially, the Board jettisoned all the
objective evidence in favour of a subjective determination about how emotional
the applicant appeared. This makes his credibility finding hard to understand
or accept.
[49]
Third, the Board’s reasoning with respect to the
airport issue is problematic. The Board said that “government
security forces use the airports as security screening points to apprehend LTTE
suspects, LTTE sympathisers or people with outstanding domestic criminal
warrants.” From this, it inferred that the applicant could not have left
the country as easily as he did if he was still suspected of LTTE involvement.
[50]
The applicant argues that Yousuff
precludes such considerations (citing paragraph 9), but in that case, there was
no evidence of any information sharing between the border services and the
army. Here, there is some (response to information request LKA103344.E: Security
Controls at the international airport and ports (28 January 2010)).
[51]
However, that evidence does not extend so far as
to support the Board’s claim. In relevant part, the response to information
request said the following: “T hose with a criminal
record or LTTE connections would face additional questioning and may be
detained.” That seems like it would only apply to people who have known
connections to the LTTE and exclude people merely suspected.
[52]
However, it is only the latter that the
applicant claimed to be. In Sellaththurai v Canada (Minister of Citizenship
and Immigration), 2014 FC 104 at paragraph 55, [2014] FCJ No 103, I
endorsed the following comment from a decision of Mr. Justice Robert Barnes:
It was not enough to consider whether there was
an outstanding arrest warrant. The evidence indicates that there are other
persons of more informal interest to the authorities who may not be wanted per
se but are still viewed with suspicion. Young Tamil males with the kinds of
experiences described by Mr. Rayappu might fit such a profile and thereby
remain at risk for similar extra-judicial abuse.
[53]
In my view, that observation applies with equal
force in this case.
[54]
Of course, the Board also found that the
applicant lacked any subjective fear, which could have alone defeated the
section 96 claim (see Canada (Attorney General) v Ward, [1993] 2
SCR 689 at 723 [Ward]). However, it is impossible to tell how the
Board’s unreasonable credibility determination could have affected this. After
all, a finding of credibility is often determinative of subjective fear (Ward
at 723).
[55]
Further, the Board may have overstated the
importance of a credible fear interview in the United States. There was nothing
in the record disclosing what importance such a finding has in the United States’ asylum system. Further, the asylum officer conducting that interview only
wrote the following:
The applicant has established that a
significant possibility exists that he could be found credible in a
full hearing before an [immigration judge]. The applicant has also established
that a significant possibility exists that he could be found
eligible for asylum in a full hearing before an [immigration judge].
[Emphasis added]
[56]
Given that language, it sounds like the credible
fear interview is primarily a screening determination that would not bind the
immigration judge. As such, there is no evidence that the applicant would have
had a better chance in the United States than he had here.
[57]
Admittedly, each of those errors alone would not
have been enough to conclude that the decision as a whole was unreasonable.
Taken together, however, the decision is unjustifiable and I cannot be
confident that the decision would have been the same had all these errors not
been made. I would therefore set aside the decision.
[58]
Therefore, I allow the application for judicial
review and set aside the Board’s decision.
[59]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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