Docket: IMM-2686-14
Citation:
2015 FC 518
Toronto, Ontario, April 22,
2015
PRESENT: The
Honourable Mr. Justice Hughes
|
BETWEEN:
|
|
KIRISANTHAN
SELVACHANTHIRAN
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is a judicial review of a decision of a
Member of the Refugee Protection Division dated March 19, 2014 in which the
Applicant’s claim for refugee protection was rejected.
[2]
The Applicant is an adult Tamil male from the
north part of Sri Lanka. He is a citizen of that country. He was caught up
with the civil war there. His brother was killed during the conflict. The
Applicant left Sri Lanka on March 22, 2010 and travelled through several
countries entering the United States on May 10, 2010. He did not claim asylum
there although he was detained by the United States authorities. The Applicant
travelled to the United States/Canada border on August 7, 2010 and claimed
refugee protection upon entry into Canada at that time.
[3]
The issue for determination centers upon the inconsistency
between what the Applicant said on his original Personal Information Form
(“PIF”), which was prepared with the assistance of Counsel and received
September 1, 2010, and his subsequent amended PIF received mid-2013. That and
other factors led the Member to conclude that there was not a serious
possibility that the Applicant would not be persecuted upon return to Sri Lanka today.
[4]
In the Applicant’s original PIF narrative, the
Applicant said that his brother was killed on January 16, 2009 during a shell
attack on a bunker in which his family was sheltering. He said that his
brother’s body was removed a day later. He said that in March 2009, the
Applicant and relatives were fleeing through the jungle where a cousin and some
other relatives were killed.
[5]
In his 2013 amended PIF narrative, the Applicant
stated that the LTTE had demanded that his family provide them with a person
and, as a result, that his brother was taken by them. He said that the LTTE
said that his brother died in battle and his body was not recovered. His
brother’s death certificate was dated March 15, 2009, the day the LTTE told his
family that his brother was dead. The family assumed that he died in a battle
that took place January 16, 2009.
[6]
When asked why he did not mention that his
brother was conscripted by the LTTE and died in battle in his original PIF, the
Applicant admitted that he had lied. He said that he feared that his claim
would be refused, and that he would be deported had he disclosed his brother’s
ties to the LTTE at the time.
[7]
The Member found, given the discrepancies in the
PIF’s, that the Applicant was not credible. I find this determination to be
reasonable.
[8]
The Member proceeded with a consideration as to
whether the Applicant would be persecuted by the authorities in Sri Lanka were he to be returned today. The Member noted that the Applicant had been
detained by the authorities for several days in September 2010 at which time he
was beaten and questioned as to his affiliation with the LTTE. The Member
noted that the Applicant had been released upon the payment of a bribe by the
Applicant’s father. The Applicant then proceeded to leave Sri Lanka via the airport using his own passport without apparent difficulty.
[9]
The Member weighed the evidence as to possible
persecution were the Applicant, as a young Tamil male possibly with LTTE
connections, to be returned to Sri Lanka, and came to the conclusion that there
was no serious possibility of persecution.
[10]
Applicant’s Counsel, with considerable skill, went
through the Member’s reasons pointing out where the Member failed to mention
other evidence or portions of the evidence cited by the Member which would have
favoured the Applicant. Counsel referred to several authorities in which the
Court was critical of reasons that did not cite all the evidence.
[11]
Respondent’s Counsel, also skillfully, noted
that there was considerable evidence to support the Member’s determinations and
authorities pointing out that the reasons do not need to be microscopically
examined or refer to every piece of evidence.
[12]
A consistent theme in the jurisprudence
respecting matters such as this is that each case is fact specific and must be
determined on its own merits (e.g. Sivalingam v Canada (Minister of
Citizenship and Immigration), 2012 FC 1046 at paragraph 38).
[13]
I am left with some doubt in this case as to the
determination by the Member; however, I am mindful of my role in a judicial
review; it is not to make the determinations that I would have made; rather, it
is to determine whether the determinations of the tribunal were reasonable. In
this regard, it is worth repeating paragraphs 46 and 47 of the Supreme Court of
Canada decision in Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190:
46 What
does this revised reasonableness standard mean? Reasonableness is one of the
most widely used and yet most complex legal concepts. In any area of the law we
turn our attention to, we find ourselves dealing with the reasonable,
reasonableness or rationality. But what is a reasonable decision? How are
reviewing courts to identify an unreasonable decision in the context of
administrative law and, especially, of judicial review?
47 Reasonableness
is a deferential standard animated by the principle that underlies the
development of the two previous standards of reasonableness: certain questions
that come before administrative tribunals do not lend themselves to one
specific, particular result. Instead, they may give rise to a number of
possible, reasonable conclusions. Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. 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 [page221] 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.
[14]
To this, I add the remarks of Justice Gascon for
the majority of the Supreme Court of Canada in the recent decision of Mouvement
laïque québécois v. Saguenay (City), 2015 SCC 16 where he wrote at
paragraph 46:
46 Deference is in order where the
Tribunal acts within its specialized area of expertise …
[15]
Guided by these principles, I find that the
decision under review was reasonable and will not be set aside.
[16]
No party requested that a question be certified.
Email this Content