Docket: IMM-6109-13
Citation:
2015 FC 154
Ottawa, Ontario, February 5, 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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SIVAKUMARAN SOTHINATHAN
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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.
Nature of the Matter and Background
[1]
Mr. Sothinathan [Applicant] applied for Canada’s
protection under sections 96 and 97(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA], but his claim was rejected by
the Refugee Protection Division [RPD] of the Immigration and Refugee Board. He
now seeks judicial review pursuant to subsection 72(1) of the IRPA,
asking this Court to set aside the negative decision and send the matter to a
different panel of the RPD for re-determination.
[2]
The Applicant is a 50 year-old Tamil man from Sri Lanka. He came to Canada on January 19, 2012, after spending a couple of months in the United States of America where he was subject to an immigration detention. Upon arrival in Canada, where the Applicant’s parents and one of his sisters live, the Applicant immediately sought
refugee protection, claiming that the security forces in Sri Lanka were harassing and abusing him because they suspected that he supported the
Liberation Tigers of Tamil Eelam [LTTE]. Most recently, the Applicant said that
in 2010, he had been renting a room to a boy who later disappeared. He alleged
that he was detained and tortured for information about the boy several times
before he fled Sri Lanka.
II.
Decision under Review
[3]
By reasons dated August 27, 2013, the RPD
rejected the Applicant’s claims because it did “not find
his story to be credible in its material aspects or his fear to be
well-founded.”
[4]
The RPD was not convinced that anyone suspected
the Applicant of having links to the LTTE. He was released every time he had
been detained by the security forces, and a judge had specifically cleared him
of any suspicion of ties to the LTTE in 2008. Furthermore, the Applicant had no
difficulty leaving the country using his own passport, and the RPD did not
believe the security forces at the border would dare let anyone suspected of
sympathizing with the LTTE leave the country. Also, the Applicant’s wife and
son still live in Sri Lanka and the RPD said that they have not encountered any
problems. Ultimately, the RPD decided that the Applicant was just a farmer and
vendor, and he did not belong to any of the groups that the United Nations High
Commissioner for Refugees identify as at-risk in Sri Lanka.
[5]
The RPD was also not satisfied that the
Applicant subjectively feared persecution. He said he had been granted asylum
in the United States when he was released from detention there, but abandoned
either that status or at least his claim by coming to Canada. Since the United States was a safe country, the RPD found that this suggested a
lack of subjective fear and it did not accept the Applicant’s excuse that he
left because he had family in Canada. Furthermore, the Applicant did not
disclose that he had claimed asylum in the United States in his Personal Information Form [PIF], and the RPD drew a negative inference from that omission.
[6]
The RPD also found that the Applicant would not
be mistreated as a failed asylum claimant upon returning to Sri Lanka, since he was of no real interest to the authorities. Although the Applicant
claimed to have been abused when he was detained, there was no objective
evidence of that and the RPD said that he had shown no signs of outward
distress when telling his tale. The RPD therefore had serious doubts about the
Applicant’s story.
[7]
Lastly, the RPD considered the risks of
extortion and kidnapping posed by rogue elements of the security forces and
paramilitary groups. In its view, this was a risk of crime faced generally by
other individuals in the country and so was excluded from the scope of
paragraph 97(1)(b) of the IRPA by subparagraph 97(1)(b)(ii).
[8]
The RPD therefore decided that the Applicant was
neither a Convention refugee under section 96 of the IRPA nor a person
in need of protection under section 97(1).
III.
The Parties’ Submissions
A.
The Applicant’s Arguments
[9]
The Applicant states that the decision under
review should be quashed and remitted to another member of the RPD for three
reasons. First, the panel member made a fundamental error of fact. Second,
although the RPD said the determinative issue was credibility, the RPD did not
address any specific issues of credibility with respect to the Applicant.
Third, the RPD made unreasonable inferences from the facts it found.
[10]
The Applicant says that the RPD made a
fundamental error when it decided that the Applicant’s family had not
experienced any problems such as he had. The Applicant argues that this finding
was completely contrary to the evidence and attracts relief under paragraph
18.1(4)(d) of the Federal Courts Act (citing Owjee v Canada (Minister of Employment and Immigration), [1993] FCJ No 423 (QL) (CA); and Mehrabi v Canada (Minister of Employment and Immigration), [1993] FCJ No 428 (QL) (CA)).
[11]
Despite basing its decision on credibility, the
Applicant says that the RPD did not explain why it disbelieved the Applicant.
The Applicant says that case law from this Court requires that negative
credibility findings be clearly stated for the decision to be transparent and
intelligible (citing Hilo v Canada (Minister of Employment and
Immigration) (1991), 130 NR 236, 15 Imm LR (2d) 199 (FCA) [Hilo]).
[12]
The Applicant further states that the RPD’s
decision is an overly simplistic analysis of the Applicant’s circumstances. The
Applicant does not need to prove that he is on a wanted list or a threat to the
government. The fact of the matter, according to the Applicant, is that the
Applicant has been a victim of abuse. His detention for three months by
government authorities was verified by the International Red Cross. According
to the Applicant, he has independently corroborated evidence of his persecution
in Sri Lanka. The fact that there is no arrest warrant is an unwarranted and
unreasonable inference by the RPD (citing Rayappu v Canada (Citizenship and Immigration) (24 October 2012), IMM-8712-11 (FC) [Rayappu]; and Sinnathamby
v Canada (Citizenship and Immigration) (21 January 2013), IMM-3828-12 (FC)
[Sinnathamby]).
[13]
Another unreasonable inference, according to the
Applicant, is the RPD’s decision and finding with respect to the U.S. refugee claim. In this regard, the Applicant cites the decision in Paramananthan v
Canada (Citizenship and Immigration) (16 November 2010), IMM-6206-09 (FC) [Paramananthan],
noting that, like in that case, the RPD failed to consider the statutory
objective of family reunification and the provisions advancing that purpose in the
U.S.-Canada Safe Third Country Agreement.
[14]
The Applicant argues that the RPD’s decision is
therefore unreasonable and contrary to the requirements of Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]. The Applicant
further claims that these errors cannot be rescued by the RPD’s discussion of generalized
risk since that is only relevant under section 97 of the IRPA.
B.
The Respondent’s Arguments
[15]
The Respondent argues that the RPD’s decision
falls within the range of reasonable outcomes and this Court should defer to
it.
[16]
As to the alleged error of fact concerning the
Applicant’s family and their experience of persecution, the Respondent notes
that the key word in this aspect of the decision is “apparently.”
The Respondent says that this is a conclusion by the RPD that the Applicant’s
family members have not been detained in the same way as the Applicant. This is
not, according to the Respondent, a blatant error that makes the decision
unreasonable.
[17]
As to the credibility findings, the Respondent
says that this is not a case where there are inconsistencies in the Applicant’s
testimony. Rather, the RPD does not take issue with the Applicant’s story, but
has regard to other factors which undermine his fear of persecution; these
factors include his ability to obtain a passport and pass through security at
the airport. The RPD correctly asked itself whether the Applicant has a credible
fear based on other factors. The Respondent says that it is not unreasonable to
draw conclusions with respect to the Applicant’s credibility from that analysis,
and that the absence of information about the U.S. refugee claim in the PIF
also goes to the Applicant’s credibility even though the Applicant did say he
made a claim during the hearing before the RPD.
[18]
The Respondent says it is reasonable for the RPD
to conclude that the Applicant may have been detained in Sri Lanka, but that even in the face of such detention there is no well-founded fear of persecution
if he returns to Sri Lanka. The Respondent says that the RPD reasonably found
that there was insufficient evidence of the Applicant’s fear of persecution.
[19]
The Respondent agrees with the Applicant that
any generalized risk under section 97 is not relevant to the matter at hand.
IV.
Issues and Analysis
A.
Standard of Review
[20]
The RPD’s assessment of the Applicant’s
credibility is to be reviewed on a standard of reasonableness (Aguebor v
Canada (Minister of Employment and Immigration), 160 NR 315 at paragraph 4,
[1993] FCJ No 732 (QL) (CA)). Credibility findings have been described as the “heartland of the Board’s jurisdiction,” in that they
are essentially pure findings of fact (Lubana v Canada (Minister of
Citizenship and Immigration), 2003 FCT 116 at paragraph 7, 228 FTR 43; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 46,
[2009] 1 S.C.R. 339 [Khosa]). Likewise, the interpretation and assessment
of evidence by the RPD is reviewable on the reasonableness standard (Oluwafemi
v Canada (Citizenship and Immigration), 2009 FC 1045 at paragraph 38,
[2009] FCJ No 1286 (QL); Lin v Canada (Citizenship and Immigration),
2008 FC 1052 at paragraphs 13-14).
[21]
Consequently, this Court should not intervene
with the RPD’s decision so long as it came to a conclusion that is transparent,
justifiable, intelligible, and within the range of possible, acceptable
outcomes that are defensible in respect of the facts and the law (Dunsmuir,
at paragraph 47; Khosa at paragraph 59). A reviewing court can neither
substitute its own view of a preferable outcome, nor can it reweigh the
evidence (Khosa at paragraphs 59 and 61).
B.
The Applicant’s Credibility
[22]
The determinative issues for the RPD in this
case were “credibility and/or well-foundedness of the
claimant’s fear,” and it did not find the Applicant’s story “to be wholly credible and/or fear to be well-founded.”
[23]
However, having stated at the beginning of its
analysis that credibility was determinative, the RPD then proceeded to make
only generalized and vague credibility findings. I agree with the Applicant
that negative credibility findings must be clearly stated for the decision to
be transparent and intelligible. As Madam Justice Mactavish recently confirmed
in Zaytoun v Canada (Citizenship and Immigration), 2014 FC 939 at paragraph
7: “[t]he Refugee Protection Division is required to make
negative credibility findings in clear and unmistakeable terms.”
[24]
Nowhere in its analysis or reasons did the RPD reasonably
question the Applicant’s account of his detentions, beatings and abuse. On the
contrary, the RPD only refers obliquely and indirectly to aspects of the
Applicant’s credibility on just four occasions in the 10 pages of its written
reasons. First, it notes that the Applicant’s wife and children still live in Colombo “apparently without the problems he alleges he underwent, adding
to the serious doubt on his own story, on the basis of similarly-situated
persons” (emphasis added as there is no earlier negative inference in
the reasons). Second, the RPD noted that the Applicant “did
not enter his U.S. asylum claim or status in section 26 of his Personal Information Form, an omission from which the panel draws a further negative inference.”
Third, the RPD found that the Applicant’s demeanour during the hearing “was such that the panel did not notice any outward distress
relative to his treatment during detentions by Sri Lankan authorities.”
Fourth, the RPD stated that documentary evidence should be “given prominence where there are serious doubts to the
claimant’s story, as there are in this case.”
[25]
The foregoing references in the RPD’s reasons do
not constitute an assessment of the Applicant’s credibility “in clear and unmistakeable terms”. On the contrary, the
RPD does not reject any part of the Applicant’s evidence but, to quote from Hilo at paragraph 6, merely “appears to cast a nebulous cloud
over its reliability.” The RPD cannot have it both ways by, on the one
hand, saying at the outset of its reasons that credibility is the determinative
issue and, on the other, then making only generalized and vague conclusions as
to credibility without stating why or how such credibility is impugned or
lacking. The RPD’s assessment of the Applicant’s credibility in this case is
neither transparent nor intelligible.
[26]
This is fatal to the decision as a whole. The
finding that the Applicant had no subjective fear cannot survive, since
credibility is often determinative of that issue (Canada (Attorney General)
v Ward, [1993] 2 S.C.R. 689 at 722-723, 103 DLR (4th) 1). It is also
impossible to tell how it affected the decision that the fear was not
well-founded. For instance, the RPD said that the fact that a judge released
the Applicant from detention in 2008 confirmed that the Applicant was not
suspected of LTTE connections. However, he had also said in his PIF narrative
and in his testimony that he had been detained since then and questioned about
events that transpired after his first release. As such, the RPD’s inference
could only be reasonable if it had disbelieved the Applicant’s account of the
more recent detentions, and the unreasonable credibility findings thereby
tainted the RPD’s analysis of well-founded fear. I also note that this Court
has found many of the RPD’s other rationales unreasonable on several other occasions
(Rayappu at paragraphs 2 and 5-6; Sinnathamby at paragraph 6; Paramananthan
at 3; and Rajaratnam v Canada (Citizenship and Immigration), 2014 FC
1071 at paragraphs 43, 46 and 49-53).
V.
Conclusion
[27]
In the result, the application for judicial
review should be and is hereby allowed. The RPD’s decision is set aside and the
Applicant’s application for refugee protection is remitted to a differently
constituted panel of the RPD for re-determination.
[28]
Neither party suggested a question for
certification; so, no such question is certified.
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