Docket: IMM-7399-13
Citation:
2014 FC 757
Ottawa, Ontario, August 1, 2014
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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RISHIKESAN MAHENDRALINGAM
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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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AMENDED JUDGMENT AND REASONS
I.
Overview
[1]
Mr Rishikesan Mahendralingam, a citizen of Sri Lanka, sought refugee protection in Canada based on his fear of the Sri Lankan army and
paramilitary organizations, namely, the Eelam People’s Democratic Party [EPDP]
and the Karuna Group. In 2011, he fled to Guatemala, then to the United States, where he was granted asylum, and then to Canada.
[2]
Mr Mahendralingam applied for a refugee
protection. A panel of the Immigration and Refugee Board found that Mr
Mahendralingam would likely experience persecution if he returned to Sri Lanka. However, the Board denied Mr Mahendralingam’s application because it
found that his evidence was not credible in certain areas.
[3]
Mr Mahendralingam argues that the Board
treated him unfairly by not giving him a chance to explain an apparent
discrepancy between his written narrative and a letter provided by his cousin.
In addition, Mr Mahendralingam says that the Board’s decision was
unreasonable because it failed to take proper account of a supporting
letter from Mr Mahendralingam’s cousin, and otherwise made unsupported negative
credibility findings against him. He asks me to overturn the Board’s
decision and order a different panel to reconsider his claim.
[4]
I agree with Mr Mahendralingam that the Board’s
decision was unreasonable and must, therefore, allow this application for
judicial review. In my view, the Board unreasonably discounted the
documentary evidence supporting Mr Mahendralingam’s application.
[5]
The issues are:
1.
Did the Board treat Mr Mahendralingam
unfairly?
2. Was the Board’s decision unreasonable?
II.
The Board’s Decision
[6]
The Board accepted Mr Mahendralingam’s
evidence that he had been detained and beaten by the Sri Lankan army in 2008
and 2009. The Board also found that Mr Mahendralingam had been abducted
by the EPDP three times in 2009, and by the Karuna Group in 2011. He was
released on the payment of bribes by his father and sister.
[7]
The Board found that Mr Mahendralingam
would likely experience persecution on his return to Sri Lanka and would not
receive state protection. However, the Board found that Mr
Mahendralingam had not given an adequate explanation for his lack of a
passport, had continued to attend college in Sri Lanka even though he risked
being abducted again, had failed to mention that his brothers had also been
mistreated, had omitted reference to the death threats he said he had received,
and had not adequately explained why he had left the United States after acquiring
asylum there.
[8]
In addition, the Board found that a
letter from Mr Mahendralingam’s sister explaining the circumstances in which
she had paid for his ransom in 2009 was unclear about whom she was actually paying
the ransom for – Mr Mahendralingam or their father. Further, the Board
concluded that a corroborating letter from Mr Mahendralingam’s cousin was not
probative because it was sent from an address that differed from the one
contained in Mr Mahendralingam’s written narrative.
[9]
Overall, the Board found that Mr
Mahendralingam had not provided credible evidence that he would be subjected to
persecution in Sri Lanka.
A.
Issue One - Did the officer treat Mr
Mahendralingam unfairly?
[10]
Mr Mahendralingam argues that the Board
should have given him a chance to respond to its concern about the
cousin’s address. The cousin’s letter, corroborating Mr Mahendralingam’s claim
to have been abducted and held for ransom, contained an address different from
the one given by Mr Mahendralingam in his narrative.
[11]
The address was not at all relevant, but the
circumstances surrounding Mr Mahendralingam’s abduction were. There was no
reasonable basis for discounting the contents of the letter based on the
address from which it had been sent.
[12]
However, this issue strikes me not as a question
of fairness but one related to the overall reasonableness of the decision.
B.
Issue Two - Was the Board’s decision
unreasonable?
[13]
The Minister argues that the Board
reasonably discounted Mr Mahendralingam’s evidence for having failed to mention
the detention of his brothers, or the death threats that he had received.
Further, the Minister submits that that the Board correctly dismissed
the corroborating letter from Mr Mahendralingam’s sister because she had no
firsthand knowledge of the situation in Sri Lanka and it was unclear from her
letter whether she provided ransom money in relation to Mr Mahendralingam’s
abduction or to their father’s.
[14]
I disagree.
[15]
Mr Mahendralingam’s written narrative was aimed
primarily at describing the events relating to him, not to his other family
members, who were endangered by different agents of persecution. Accordingly,
his failure to mention details relating to his brothers’ experiences was not a
serious omission warranting a negative credibility finding. Further, while it
obviously would have been better if Mr Mahendralingam had specifically
mentioned the death threats against him, the existence of serious threats could
reasonably be inferred from his evidence about abductions and the payment of
ransoms. Presumably, there would have been no reason to pay ransoms if Mr Mahendralingam
had not been in danger.
[16]
Regarding the sister’s letter, it would possible
to find an ambiguity in it if one were looking to discount its significance.
But reading the letter fairly, as a whole, and considering the purpose for
which it was written, it is clear that the writer was talking about ransom
payments for Mr Mahendralingam, not for his father. In my view, the Board
unreasonably dismissed the letter’s evidentiary value.
[17]
Finally, I find that the Board’s
conclusion was out of keeping with the main finding – that Mr Mahendralingam
faced a risk of abductions and beatings in Sri Lanka, and could not obtain
state protection. That principal finding should have been unaffected by the
various minor problems the Board found in the corroborating evidence.
None of them individually, nor all of them together, was so serious as to
excoriate Mr Mahendralingam’s claim.
III.
Conclusion and Disposition
[18]
I find that the Board’s treatment of the
evidence relating to Mr Mahendralingam’s PRRA application was unreasonable. I
must, therefore, allow this application for judicial review and order another panel
of the Board to reconsider his claim. Neither party proposed a question of
general importance for me to certify, and none is stated.
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