Docket:
IMM-4720-13
Citation: 2014 FC 146
Ottawa, Ontario, February 13, 2014
PRESENT: THE CHIEF JUSTICE
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BETWEEN:
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S.A.
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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]
This Application for Judicial Review is the
latest in an increasingly long line of proceedings before this Court involving sur
place claims for refugee protection made by Tamil citizens of Sri Lanka who arrived in Canada aboard the MV Ocean Lady or the MV Sun Sea.
[2]
As reflected in the Court’s evolving
jurisprudence, judicial review applications involving decisions made by the
Refugee Protection Division [RPD] of the Immigration and Refugee Board of
Canada in respect of these types of refugee claims typically raise complex
issues.
[3]
This case differs in an important respect from
many of the other recent decisions of this Court involving these types of claims,
because it concerns a conclusion reached by the
RPD with respect to the well-foundedness of S.A.’s alleged fear of persecution.
The RPD did not address the applicant’s nexus to one of the grounds of protection
set forth in section 96 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA], other than to briefly address a
case that had been referred to in the Minister’s submissions. By contrast, in
many of the recent cases that were cited by the Applicant in this Application,
a key issue for the Court on judicial review was whether the RPD had erred in
reaching its conclusion with respect to the issue of nexus.
[4]
Given the adverse
conclusion that the RPD reached in this case on the issue of the
well-foundedness of the Applicant’s fears of persecution, it was unnecessary
for the RPD to address the nexus issue.
[5]
It bears underscoring that, as with other
applications for judicial review, these types of proceedings must be
adjudicated based on the Court’s application of the appropriate standard of
review to the particular facts of the case, the issues raised in the
application, the evidence in the certified tribunal record [CTR] and the
content of the decision under review. Where the applicable standard of review
is reasonableness, the fact that this Court may have reached a particular
conclusion in respect of another matter involving somewhat similar facts and
issues is not a sound basis upon which to infer that the Court will reach the
same conclusion again.
[6]
This is in part because the reasonableness
standard requires the Court to pay respectful attention to the reasons offered
or which could be offered in support of the decision subject to review, having
regard to the content of the CTR. If those reasons are sufficiently
transparent, justified and intelligible to allow the Court to understand why
the RPD made its decision and to permit the Court to determine whether the decision
is within the range of acceptable outcomes in fact and in law, they will
withstand review (Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at paras 12-16 [Newfoundland
Nurses]). This is so even though the opposite conclusion also could
reasonably have been reached by the RPD, based on the same evidentiary record (Suppaiah
v Canada (Minister of Citizenship and Immigration), 2013 FC 429, at para
35; SK v Canada (Minister of Citizenship and Immigration), 2013
FC 78, at para 25 [SK]; B198 v Canada (Minister of Citizenship
and Immigration), 2013 FC 1106, at para 44 [B198]; B231 v
Canada (Minister of Citizenship and Immigration), 2013 FC 1218, at para 29
[B231]).
[7]
In this case, the Applicant, S.A., alleges that the RPD erred by:
i.
Failing to consider his Tamil ethnicity and his
perceived political opinion together in assessing his sur place claim,
and by relying on unreasonable assumptions in reaching its conclusion with
respect to that claim;
ii.
Fettering its discretion when it assessed his sur
place claim; and
iii.
Unreasonably assessing the risk he faces if he
is required to return to Sri Lanka.
[8]
I disagree. For the reasons that follow, this Application will be dismissed.
1. Background
[9]
S.A. was born and raised in Jaffna, where he worked as a labourer. He alleged in the Personal
Information Form [PIF] that he filed as part of his claim for refugee
protection that during the civil war in Sri Lanka, his family fled to Kilinochchi
and then to Jayapura, before returning to Jaffna after failing to receive the protection
that the Sri Lankan army had apparently undertaken to provide in the former
cities.
[10]
He also claimed that
his brother was shot and killed by the Sri Lankan army in 1996, because he was
suspected of having connections to the Liberation Tigers of Tamil Eelam
[LTTE].
[11]
In addition, he
claimed that the army searched his house, ordered him not to have anything to
do with the LTTE and threatened him with “consequences” if he was found to have
helped the LTTE.
[12]
He further asserted
that, while working as a labourer at Jaffna University in May 2009, he was
arrested during a student protest, taken to a camp, and severely assaulted and
interrogated after being unable to identify the organizers of the protest.
[13]
He apparently was
released after the Dean of the University vouched for him and he agreed to become
an informant for the army. He then fled to Colombo in July 2009 and to Thailand later that month, where he boarded the MV Ocean Lady. He claimed refugee
protection soon after his arrival in Vancouver in August 2010.
[14]
He fears that if he is forced to return to Sri Lanka he will be arrested, detained and tortured by the Sri Lankan police, the army or
paramilitary groups, and that he may be mortally harmed by former members of
the LTTE.
[15]
Those fears are based in part on his belief that
his identity as a passenger on the MV Ocean Lady has been shared with
Sri Lankan authorities, who will likely perceive him to be affiliated with the
LTTE and will likely impute the LTTE’s political opinions to him, by virtue of
his presence on that vessel and his Tamil ethnicity.
II. The
Decision under Review
[16]
At the outset of its analysis, the RPD
identified the determinative issues in this case as being “the pursuit of the
claimant by Sri Lankan army authorities due to perceived affiliation with the
LTTE, whether the claimant has a well-founded fear of persecution if required
to return to Sri Lanka and Sur Place.”
[17]
The RPD proceeded to determine that S.A. had “not been a credible witness in this regard.” This general conclusion regarding S.A.’s overall credibility was repeated numerous times during the RPD’s decision, namely,
at paragraphs 14, 19, 24, 34 and 36.
[18]
Based on its general and specific adverse credibility
findings and the related negative inferences that it made, the RPD concluded
that S.A. was not suspected of being a member or otherwise affiliated with the
LTTE by authorities in Sri Lanka and that they had no interest in him at the
time he left Sri Lanka. In reaching this conclusion, the RPD attributed
particular significance to the fact that, following his release from detention
after the student protest in May 2009, S.A. was able to obtain a Sri Lankan
passport without difficulty, obtain security clearance to travel to Colombo, pass through security checkpoints and leave the country.
[19]
In addition, the RPD reviewed a number of
sources of country documentation, including documentation published in December
2012 and February 2013 by the United Nations High Commissioner for Refugees
[UNHCR] which identified seven categories of persons who are potentially at
risk upon returning to Sri Lanka. After finding that S.A. did not fit within
any of those categories, and that S.A. had not provided any persuasive evidence
that he would be perceived to be a supporter of the LTTE, the RPD determined
that “there is little risk that he would be persecuted [as a person suspected
of having certain links with the LTTE] should he return to Sri Lanka.” The RPD
added that this conclusion was consistent with information contained in
documentation published by the United Kingdom Border Agency [UKBA] in February
2013, as well as other documentary sources that it discussed.
[20]
With respect to S.A.’s sur place claim in
particular, the RPD concluded, on a balance of probabilities, that the Sri
Lankan government would not perceive S.A. to be a member or supporter of the
LTTE simply on the basis of his travel to this country on the MV Ocean Lady,
given his history in Sri Lanka before coming to Canada.
III. Standard
of Review
[21]
The issue that S.A. has raised regarding the
RPD’s alleged failure to consider his Tamil ethnicity and his perceived
political opinion together in assessing his sur place claim, and regarding
the reasonableness of certain assumptions allegedly relied upon by the RPD in
the course of reaching its conclusion with respect to that claim, is focused on
matters of mixed fact and law. As such, it is reviewable on a standard of
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190,
at paras 51-53 [Dunsmuir]; Ganeshan v Canada (Minister of Citizenship
and Immigration), 2013 FC 841, at para 9 [Ganeshan]; B231,
above, at para 28).
[22]
In determining whether a decision is reasonable,
the general test is whether the decision “falls within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” In this regard, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process (Dunsmuir, above, at para 47).
[23]
If there exists a reasonable basis upon which
the RPD could have decided as it did, the Court must not interfere (Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association,
2011 SCC 61, [2011] 3 S.C.R. 654, at para 53 [Alberta Teachers]). In other
words, the RPD’s decision will stand where it can be “rationally supported” (Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission),
2012 SCC 10, [2012] 1 S.C.R. 364, at para 47 [Halifax]).
[24]
The issue as to whether the RPD erred by fettering
its discretion when it assessed S.A.’s sur place claim is reviewable on
a standard of correctness (Dunsmuir, above, at para 55; Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para 43; Thamotharem
v Canada (Minister of Citizenship and Immigration), 2007 FCA 198, at para
33).
[25]
The issue as to whether the RPD erred by unreasonably
assessing the risk faced by S.A. if he is required to return to Sri Lanka is
reviewable on a standard of reasonableness.
IV. Analysis
A. Did the RPD err by failing to
consider S.A.’s Tamil ethnicity and his perceived political opinion together in
assessing his sur place claim, and by relying upon unreasonable
assumptions in the course of reaching its conclusion?
[26]
S.A. submits that the RPD failed to consider
the fact that his Tamil ethnicity coupled with the fact that he travelled on
the MV Ocean Lady played an important role in his sur place
claim. In brief, he maintains that the RPD failed to appreciate that as a
result of the combination of these two considerations, authorities in Sri Lanka
may consider him to have political opinions that are similar to or sympathetic
with those of the LTTE. Stated differently, he asserts that, in assessing his sur
place claim, the RPD failed to consider the fact that his agents of
persecution in Sri Lanka may have mixed motives for harming him, should he
return to Sri Lanka (Zhu v Canada (Minister of Employment and Immigration),
[1994] FCJ No 80, at para 2; Canada (Minister of Citizenship and
Immigration) v B344, 2013 FC 447, at paras 37-45); Canada
(Minister of Citizenship and Immigration) v B377, 2013 FC 320, at
para 21).
[27]
In a related submission, S.A. asserts that the RPD conducted a generalized assessment of the issue of failed asylum-seekers
returning to Sri Lanka, without examining whether his unique profile as a
passenger on a suspected LTTE ship enhanced the risk to his life and safety if
he returned to Sri Lanka. On this point, he maintains that the RPD failed to
come to grips with the fact that his risk profile increased after he had left
the shores of Sri Lanka, because he might be perceived to either be a supporter
of the LTTE or to have valuable information regarding the LTTE, by virtue of
having spent so much time with fellow passengers on a suspected LTTE ship. Instead,
he submits that the RPD unreasonably assumed that, since he was not perceived
to be a supporter of the LTTE at the time he left Sri Lanka, he did not face a
serious possibility of persecution upon his return to that country. He adds
that, even if the RPD did not err in reaching its adverse conclusions regarding
the credibility of his claims, it erred by failing to assess the heightened
risk that formed the basis of his sur place claim.
[28]
I disagree.
[29]
It is clear from a reading of the RPD’s decision
as a whole that the RPD carefully considered and rejected S.A.’s claim that he has a well-founded fear of persecution based on the fact that he was a
Tamil male who had travelled aboard the MV Ocean Lady. The RPD’s
assessment of this claim included an evaluation of S.A.’s allegation that he may
be perceived to have political opinions that are similar to, supportive of or
sympathetic with those of the LTTE. The RPD was very much alive to the
possibility that Sri Lankan authorities might have mixed motives for
persecuting or harming him upon his return to Sri Lanka. However, after
reviewing the evidence in the CTR on this issue, which essentially consisted of
several objective sources of country documentation, the RPD reasonably
rejected this aspect of S.A.’s claims.
[30]
The RPD recognized S.A.’s Tamil ethnicity at the
outset of its decision. Then, after explaining why it rejected important
aspects of his claims and testimony on credibility grounds, it proceeded to a
discussion of country conditions. Throughout that section of its decision (at
paragraphs 37, 39, 45 and 47), as well as the remaining sections dealing with
failed asylum-seekers (at paragraphs 51, 53 and 56) and S.A.’s sur place claim
(at paragraphs 62 and 63), it repeatedly referred to the situation facing
Tamils in Sri Lanka, including those returning from abroad.
[31]
The RPD also squarely came to grips with S.A.’s
claim that he would be persecuted based on the fact he had travelled aboard the
MV Ocean Lady and may therefore be perceived to have the political
opinions described above.
[32]
The RPD explicitly turned to this issue at
paragraph 50 of its decision. After further discussing S.A.’s prior interrogation history, the more general issue of returning Tamils, and the “Togo experience,” which it observed “did not generate the kind of publicity that the arrival of the Sun Sea and Ocean Lady ships did,” the RPD specifically addressed the
situation faced by returnees who had been passengers on those vessels. On this
issue, it concluded that “the Sri Lankan government would not perceive the
claimant to be a member or supporter of the LTTE simply on the basis of his
travel on the Ocean Lady, given his alleged history in Sri Lanka before coming to Canada.” That history included being released after prior interrogations,
being able to obtain security clearance from the army to travel to Colombo, and being able to obtain a passport, pass through security checkpoints and leave Sri Lanka without difficulty. Contrary to S.A.’s assertions, the RPD’s assessment of this
point was highly personalized, and not general in nature.
[33]
As further discussed in part IV.C of these
reasons below, in the course of its assessment the RPD referred to several objective
and credible sources of country documentation addressing persons at risk in Sri Lanka and the situation faced by Tamils returning to that country. It then concluded
that S.A. does not fit within any of the categories of persons who are
considered to be at risk of persecution or harm in Sri Lanka. This assessment
covered persons currently within Sri Lanka as well as failed asylum-seekers. Based
on its review of that country documentation, the RPD concluded that there was
insufficient evidence to suggest that S.A. would be detained after initial
screening, should he return to Sri Lanka. This determination was supplemented
by its subsequent finding that S.A. had failed to adduce sufficient credible
evidence to demonstrate that “the Government of Sri Lanka suspects individuals
as having links to the LTTE by virtue of having been smuggled to Canada aboard a ship owned and operated by the LTTE.” S.A. did not identify any such
evidence in either his written or his oral submissions to this Court.
[34]
Having reviewed the CTR, I am satisfied that these
conclusions and findings were not unreasonable, particularly given that the RPD
recognized that the country documentation reflects that Tamils in Sri Lanka continue
to suffer from harassment and discrimination, and that those who are suspected
of having links to the LTTE continue to face a risk of torture and even death.
[35]
As in Ganeshan, above, at paragraph 35,
the “mixed motives” aspect of S.A.’s claim was speculative and largely
unsupported by the evidentiary record (see also PM v Canada (Minister of Citizenship and Immigration), 2013 FC 77, at para 13 [PM]; and B198,
above, at para 44).
[36]
S.A. also submits that
the RPD erred in its assessment of his sur place claim by stating that
it is reasonable to expect that, if Sri Lankan officials became aware that he
had been aboard the MV Ocean Lady, they would logically conclude that
Canadian officials had investigated whether or not he had ties to the LTTE. S.A. maintains that the RPD compounded this error by stating that it would be open to him
to produce the RPD’s decision to Sri Lankan authorities, and by implying that
this would further reduce the possibility that he might be persecuted upon his
return.
[37]
I am satisfied that this consideration was not
material to the RPD’s decision. The statements made by the RPD in this regard
were made at the very end of its decision, after it had already rejected the
key components of S.A.’s claims on credibility grounds and reasonably concluded
for other reasons that he does not have a well-founded fear of persecution if required
to return to Sri Lanka. Those other reasons were essentially those discussed in
these Reasons for Judgment.
[38]
I would simply add in passing that I share
Justice Snider’s view that the RPD’s decision could be helpful to S.A. upon his
return to Sri Lanka, although there is no evidence in the CTR that this would
necessarily be probative to authorities in that country (SK, above, at
para 23; PM, above, at para 15).
[39]
In addition to the foregoing, relying on
comments made by the RPD at paragraph 63 of its decision, S.A. asserts that the
RPD restricted its consideration of his sur place claim to his
“membership in a particular social group,” and therefore failed to assess the
other grounds upon which he claimed to have had a well-grounded fear of
persecution, namely, his race, his religion, his nationality and his imputed
political opinions.
[40]
I disagree. At paragraph 63, the RPD simply
observed that the Minister had referenced a recent case in which this Court
overturned the RPD’s finding that the claimant was a refugee sur place
by virtue of his being a Tamil male who had travelled to Canada aboard the MV Sun Sea. The RPD noted that in that case, the Court found that simply
being a Tamil male who had travelled to Canada aboard the MV Sun Sea was
not a sufficient basis upon which to find that the applicant was a member of a
particular social group, as contemplated by section 96 of the IRPA. This
single paragraph was situated in the middle of the RPD’s assessment of S.A.’s sur place claim, which was clearly focused on the well-foundedness of his
fear of persecution. This is evident from the absence of any other reference in
the decision to the issue of nexus, and from the content of the RPD’s analysis
in the other paragraphs in its decision, under the heading Sur Place.
For example, at paragraph 61, the RPD stated that it “has considered if, in
fact, the claimant faces an increased risk of persecution by virtue of having
travelled aboard the Sun Sea.” The RPD proceeded in paragraph 62 to quote from
a report from the UKBA, which again focused on the risk of persecution (rather
than on nexus). In paragraph 64, the RPD then corrected its inadvertent
reference to the MV Sun Sea by addressing Sri Lankan authorities’ likely
interest in the arrival of the MV Ocean Lady in Canada. Finally, at paragraph 66, the RPD stated its conclusion that the Sri Lankan government would
not perceive S.A. to be a member or supporter of the LTTE simply on the basis
of his travel to Canada on the MV Ocean Lady, given his alleged history
in Sri Lanka before coming to Canada. Importantly, that history included being
a Tamil male who was known to Sri Lankan authorities.
[41]
In summary, I am satisfied that the RPD did not
err by failing to consider S.A.’s Tamil ethnicity and his perceived political
opinion together in assessing his sur place claim, or by making
unreasonable assumptions that were material to its decision to reject that
claim.
B. Did the RPD err by fettering its discretion
when it assessed S.A.’s sur place claim?
[42]
S.A. submits that the RPD fettered its
analysis of his sur place claim by failing to consider the fact that his
brother-in-law is the alleged owner of the MV Sun Sea. He asserts that
the RPD was required to assess this issue even if it may be said to have
reasonably rejected his narrative on credibility grounds and concluded that
this aspect of his claim was fraudulent. He maintains that the fact that he is
related to the alleged owner of the MV Sun Sea heightened his risk and
increased the possibility of his persecution at the hands of Sri Lankan
authorities.
[43]
I am satisfied that the RPD did not err in
respect of this aspect of S.A.’s claim.
[44]
The RPD directly and comprehensively dealt with
this issue at paragraphs 25-34 of its decision.
[45]
In brief, it began by noting that S.A. raised this issue for the first time in the second amendment to his PIF, which he made
on May 16, 2013. In that amendment, he alleged that both the MV Sun Sea
and the MV Ocean Lady are registered in the name of his brother-in-law,
and that the army and the Criminal Investigation Department [CID] have visited
his home in Sri Lanka to inquire about him and his brother-in-law.
[46]
The RPD provided seven separate reasons for
rejecting this aspect of S.A.’s claim on credibility grounds. Based on its adverse
credibility findings and negative inferences, it rejected the specific
allegation that the MV Ocean Lady and the MV Sun Sea are
registered in his brother-in-law’s name, and that this has caused the army and
the CID to have a greater interest in him. In my view, the assessment
conducted and the conclusion reached by the RPD on this issue were not
unreasonable. The same is true with respect to the RPD’s observation that these
allegations were made only for the purpose of enhancing S.A.’s fraudulent claim.
[47]
Contrary to S.A.’s assertion, the RPD did not
fetter its analysis of his sur place claim by failing to mention the
allegation that his brother-in-law is the registered owner of the vessels in
question when it specifically considered his sur place claim. By that
point in its assessment, the RPD had already rejected that specific allegation
on credibility grounds. It was therefore entirely appropriate for the RPD to
have refrained from further discussing this allegation in its analysis.
C. Did the RPD unreasonably assess the risk S.A. faces if he is required to return to Sri Lanka?
[48]
S.A. submits that the
RPD unreasonably and incorrectly concluded that his personal profile does not
fall within one of the seven categories of persons identified by the UNHCR as
being at risk of persecution or harm if required to return to Sri Lanka. He adds that while the RPD made and relied upon adverse credibility findings or
negative inferences in the course of reaching its decision, it ignored or
failed to reasonably address aspects of his case in respect of which he was
found to be credible.
[49]
I disagree.
[50]
The RPD observed that the UNHCR Eligibility
Guidelines for Assessing the International Protection Needs of Asylum-Seekers
from Sri Lanka [Guidelines], dated July 5, 2010, state that given the
cessation of hostilities in Sri Lanka, persons originating from the north of
the country are no longer in need of refugee protection under broad refugee
criteria or complementary forms of protection, solely on the basis of risk of
indiscriminate harm. The Guidelines also state that, “[i]n light of the
improved human rights and security situation in Sri Lanka, there is no longer a
need for group-based protection mechanisms or for the presumption of
eligibility for Sri Lankans of Tamil ethnicity originating from the north of
the country.” Nevertheless, the Guidelines identify the following categories of
persons as being at risk of persecution or harm if required to return to Sri Lanka:
1. Persons suspected of having links with the LTTE;
2. Journalists and other media professionals;
3. Civil society and human rights activists;
4. Women and children with certain profiles; and
5. Lesbian, gay, bisexual and transgender individuals.
[51]
The RPD further noted that the most recent version
of the Guidelines, published on December 21, 2012, adds two additional groups
of concern, namely:
6. Certain opposition politicians and political activists;
and
7. Certain witnesses of human rights violations
and victims of human rights violations seeking justice.
[52]
In addition, the RPD observed that this more
recent version of the Guidelines identified the following six “Risk Profiles”
within the first of the above-mentioned categories (persons suspected of having
links with the LTTE):
1. Persons who held senior positions with considerable
authority in the LTTE civilian administration, when the LTTE was in control of
large parts of what are now the northern and eastern provinces of Sri Lanka;
2. Former LTTE combatants or “cadres”;
3. Former LTTE combatants or “cadres” who, due to injury
or other reason, were employed by the LTTE in functions within the
administration, intelligence, “computer branch” or media (newspaper and radio);
4. Former LTTE supporters who may never have undergone
military training, but were involved in sheltering or transporting LTTE
personnel, or the supply and transport of goods for the LTTE;
5. LTTE fundraisers and propaganda activists and those
with, or perceived as having had, links to the Sri Lankan diaspora that
provided funding and other support to the LTTE; and
6. Persons with family links or who are dependent on or
otherwise closely related to persons with the above profiles.
[53]
S.A. maintains that the
RPD erred by finding that he does not come within the general category of
persons suspected of having links with the LTTE, and in particular the
“profile” of persons with family links to the LTTE. However, based on the
reasonable credibility findings that it made and the evidence in the CTR, it
was reasonably open to the RPD to conclude that S.A.’s personal profile did not
fit within that category or within any of the other above-noted categories
identified by the UNHCR. Those findings included (i) its determination that
S.A. “was not suspected of being a member or otherwise affiliated with the
LTTE” at the time he left Sri Lanka and that authorities in that country had
“no interest in him in this regard” at that time; (ii) its determination that
his claimed relationship to the registered owner of the MV Sun Sea and
the MV Ocean Lady was not credible; and (iii) its determination that “no
credible evidence has been adduced that the Government of Sri Lanka suspects
individuals as having links to the LTTE by virtue of having been smuggled to
Canada aboard a ship owned and operated by the LTTE.” As noted at paragraph 33
above, S.A. did not identify any such evidence in either his written or his
oral submissions to this Court.
[54]
The RPD’s conclusion that “there is little risk
that [S.A.] would be persecuted [on the basis of suspected links with the LTTE]
should he return to Sri Lanka” is also supported by other country documentation
that was cited by the RPD. This includes information discussed in a recent
report issued by the UKBA. Among other things, that report states: “The
principal focus of the authorities [in Sri Lanka] continues to be, not Tamils
from the north (or east) as such, but persons considered to be either LTTE
members, fighters or operatives or persons who have played an active role in
the international procurement network responsible for financing the LTTE and
ensuring it was supplied with arms.” That report also notes: “The records the
Sri Lankan authorities keep on persons with some history of arrest and
detention have become increasingly sophisticated; their greater accuracy is
likely to reduce substantially the risk that a person of no real interest to
the authorities would be arrested or detained.”
[55]
Having reviewed the CTR, I am satisfied that the
findings made by the RPD with respect to the well-foundedness of S.A.’s fears of persecution should he return to Sri Lanka were not unreasonable. In my view, they reasonably
reflected the information in the country documentation on this point.
[56]
With respect to the positive credibility
findings that S.A. alleged were ignored or not reasonably considered by the
RPD, none were identified in his written submissions on this Application and
his counsel was unable to identify any in response to my specific questioning
on this point during the hearing of this Application. With that in mind, and
having closely reviewed the RPD’s decision and the CTR, I am satisfied that
there were no positive credibility findings that may have had a significant
bearing on the conclusions reached by the RPD and that were ignored by the RPD.
[57]
Finally, S.A. asserts that the RPD’s decision is
unreasonable because paragraphs 52 and 65 are incomplete and a reader of the
decision is left wondering as to what the RPD intended. Paragraph 52 states:
[52] Also, in
January 2012, the government of Canada and the IOM signed an Assisted Voluntary
Returns Agreement in which the IOM would facilitate the voluntary return of Sri
Lankans from Africa to Colombo. Canadian officials reported that sixty-six
returnees were interviewed at the airport and released without any
difficulties. Similar results were found
[58]
I am satisfied that the RPD’s failure to
complete the last sentence in paragraph 52 did not render its decision
unreasonable. The words “[s]imilar results were found” clearly indicate that
the incomplete sentence would simply have provided additional evidence for the
statement made by the RPD regarding returnees being released without
difficulties after being interviewed at the airport. The absence of such
additional evidence did not render unreasonable any of the conclusions reached
by the RPD.
[59]
With respect to paragraph 65, the relevant
passage of the RPD’s decision is as follows:
[65] … Furthermore,
the panel notes that the issue of the claimant’s alleged LTEE affiliation was
vetted by Sri Lankan authorities prior to his arrival in Canada by virtue of his ability to obtain travel documents in and out of Sri Lanka without
difficulty. In addition, the panel finds it is reasonable that, it would be
open to the claimant produce the Immigration and Refugee Board’s decision to in
order to demonstrate that he was not found by Canadian authorities to be a
member or associate of the LTTE.
[60]
For the reasons discussed at paragraph 37 above,
these statements were not material to the conclusion reached by the RPD with
respect to the well-foundedness of S.A.’s stated fears. Therefore, the fact
that the second statement was incomplete, by virtue of the omission of the
object of the sentence, does not render the RPD’s decision unreasonable.
[61]
During the oral hearing of this Application,
counsel to S.A. submitted that the RPD did not reasonably assess the contents
of two of the documents upon which it relied in reaching its decision. Both of
those documents are Responses to Information Requests (RIRs) that are
contained in the CTR and in the Immigration and Refugee Board of Canada’s
National Documentation Package for Sri Lanka.
[62]
The first of those documents, dated 9 February
2011 and coded ZZZ103665.E, was accurately quoted as stating that the UNHCR
assists refugees wanting to repatriate to Sri Lanka, including by financially
supporting their return, after assessing the situation on the ground in that
country. Having closely reviewed that document, I am satisfied that there is
nothing in it which might reasonably have led the RPD to conclude that S.A. has a well-founded fear of persecution should he return to Sri Lanka.
[63]
The second of those documents, dated 22 August
2011 and coded LKA103815.E, contains information from many different sources.
It was cited by the RPD as authority for its statement that “… returning Tamils
are subjected to the same screening process [as is applied] for all persons
returning to Sri Lanka, regardless of whether they are returning on a voluntary
basis or as the result of a failed refugee claim.” That particular statement
was attributed to an official from the Canadian High Commission in Sri Lanka. However, other sources referred to in the document suggest that persons who are
deported or who are “returned” as a result of a failed asylum process may be
treated somewhat differently from others who are returning to that country. A
fair reading of those other sources reflects that such persons may be detained
for a period of time ranging from a few hours to “months.” A small number of
those sources also suggest that such persons may be assaulted or tortured in
detention. However, other sources that are cited in the document report that
there is no evidence that those who have been returned to Sri Lanka have been mistreated. Particularly given that this document is significantly
older than the more recent documentation upon which the RPD relied in reaching
its conclusion that S.A. does not have a well-founded fear of persecution if he
is returned to Sri Lanka, I am satisfied that it was not unreasonable for the
RPD to have failed to explicitly address the above-mentioned information in its
decision.
[64]
In summary, having regard to the reasons given
by the RPD and the contents of the CTR, I am satisfied that the conclusion
reached by the RPD falls “within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law.” That conclusion was appropriately
transparent, justified and intelligible (Dunsmuir, above, at para 47; Construction
Labour Relations v Driver Iron Inc, 2012 SCC 65, [2012] 3 S.C.R. 405, at para
3). It was also rationally supported and had a reasonable basis in the CTR (Alberta
Teachers, above; Halifax, above).
[65]
Having regard to all of the foregoing, this
Application will be dismissed.
[66]
At the end of the hearing, the parties declined
to propose a question for certification. I agree that no such question arises
on the particular facts of this case.
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