Docket: IMM-5198-13
Citation:
2015 FC 668
Ottawa, Ontario, May 22, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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GOPYNATH
THEVATHASAN
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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 claim for refugee protection was
denied by the Refugee Protection Division of the Immigration and Refugee Board
of Canada (the Board). He now applies for judicial review of that decision
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act].
[2]
The applicant seeks an order setting aside the
negative decision and returning the matter to a different member of the Board
for redetermination.
I.
Background
[3]
The applicant is a 28 year old Tamil born in
Tellippalai and raised in Jaffna, Sri Lanka. He claims to fear persecution from
the hands of the army, the Eelam People’s Democratic Party [EPDP] and the Liberation
Tigers of Tamil Eelam (LTTE) if he were to return to Sri Lanka. He alleges four
encounters with the Sri Lankan authorities.
[4]
The applicant’s father paid extortion demands to
the LTTE in order to protect the applicant, his only son. The LTTE tried to
recruit the applicant when he began to attend school. While attending college
in Jaffna, the applicant was detained on a “number” of occasions and on each
occasion, his release was secured.
[5]
In 2003, the army stopped him, checked his
school bags, questioned him, detained him for 20 minutes and released him when
his school principal arrived.
[6]
In May 2008 during a bomb attack, the applicant,
who was in the area at the time, was arrested, interrogated, detained for four
hours and beaten by soldiers. The applicant sustained back injuries from being
struck with a gun butt. The soldiers released him on the condition that he
would pass on any information he learned about the LTTE to them.
[7]
In November 2009, the applicant was stopped by
the army, taken to a camp and “severely interrogated.”
He was later released after 15 hours on the condition that if he was suspected
again, he would be arrested and held indefinitely.
[8]
On January 15, 2010, the applicant and three of
his friends were taken to an EPDP camp and held for two days. His mother paid
25,000 rupees demanded for his release. He was injured but did not seek medical
attention.
[9]
Subsequently, the applicant’s parents sent him
to Colombo and hired an agent to help him to leave Sri Lanka.
[10]
On March 20, 2010, the applicant left Sri Lanka
with a Cuban passport. He passed through Dubai, Moscow, Havana, Mexico and the
United States. On August 24, 2010, he arrived in Canada and made his refugee
claim on the same day.
II.
Decision Under Review
[11]
The Board’s negative decision was issued on July
17, 2013, ruling that the applicant is not a Convention refugee and is not a
person in need of protection.
[12]
The Board stated the determinative issue is
credibility. It determined that based on a balance of probabilities, the
applicant did not have a well-founded fear of returning to Sri Lanka because if
the army or the EPDP wanted to harm or kill the applicant, they had many
opportunities to do so.
[13]
The Board first reviewed the documentary
evidence, noting individuals suspected of LTTE association were typically
separated into special detention centers. Here, the applicant’s four encounters
with the authorities did not involve a special detention center. Each time he
was released. This led the Board to conclude that he was not identified as an
LTTE member.
[14]
Then, the Board found the applicant was a victim
of extortion. It found on a balance of probabilities, the applicant would face
post-war extortions from paramilitary groups. However, the documentary evidence
suggest that those post-war extortions are no longer linked to the war but are
linked to paramilitary groups seeking to obtain wealth.
[15]
It cited multiple Federal Court cases holding
that victims of crime, corruption (Leon v Canada (Minister of Citizenship
and Immigration), [1995] FCJ No 1253, 58 ACWS (3d) 289) or vendettas (Marincas
v Canada (Minister of Employment and Immigration), [1994] FCJ No 1254)
generally fail to establish a link between their fear of persecution and one of
the Convention grounds in the definition of Convention refugee. Here, the
applicant’s fear for future crime is not linked to persecution from “race, ethnicity, religion, political opinion or any other
Convention ground.”
[16]
It further noted travel within Sri Lanka during
the war was “rigidly enforced” and that Tamils
travelling to Colombo were targeted and closely monitored. However, the
applicant was able to travel to Colombo with his aunt post-war and then passed
through three check points with an agent with relative ease. Therefore, given
the heightened surveillance of Tamils travelling in Sri Lanka post-war, the
applicant would not have been able to travel to and leave Colombo if he was
suspected by the government of being a member or sympathizer of the LTTE.
[17]
Next, the Board examined the issue of changing
country circumstances, which is a factual determination with no separate legal
test (see Yusuf v Canada (Minister of Employment and Immigration), [1995]
1 FC 629, [1995] FCJ No 35). According to country documents, former
LTTE-associated child soldiers and some adult detainees who are no longer
deemed to present a risk were released from rehabilitation centers from early
January 2010 to May 2010. It noted life for the remaining Tamil population has
improved. Also, the United Nations High Commissioner for Refugees [UNHCR]
changed its position due to this improved country condition and advised that
Northern Tamils are no longer presumptively eligible for refugee protection.
UNHCR recommended ongoing protection for those people who fit in the following
profiles: “persons suspected of having links with the
LTTE, journalists and other media professionals, civil society and human rights
activists, women and children with certain profiles, and lesbian, gay, bisexual
and transgender individuals.” The Board found that on a balance of
probabilities, the applicant is not perceived to be linked to LTTE and his
profile does not fit that of “persons suspected of
having links with the LTTE.”
[18]
Therefore, the Board found that there is no
serious possibility that the applicant would be persecuted should he return to
Sri Lanka and that his fear is not well-founded.
III.
Issues
[19]
The applicant raises one issue for my
consideration: did the Board err in law in finding that the applicant does not
have a well-founded fear of persecution in Sri Lanka by reason of race?
[20]
The respondent raises one issue in response: the
applicant has not shown the Board’s decision to be unreasonable.
[21]
In my view, there are two issues:
A.
What is the standard of review?
B.
Was the Board’s decision reasonable under
section 96 of the Act?
IV.
Applicant’s Written Submissions
[22]
The applicant submits the standard of review for
this decision is that of reasonableness under Dunsmuir v New Brunswick,
2008 SCC 9 at paragraph 47, [2008] SCJ No 9 [Dunsmuir].
[23]
First, the applicant submits the Board’s
decision is unreasonable as it lacks transparency and intelligibility. Although
the Board’s negative finding is based on credibility, it failed to give any
reasons for finding any of his testimony to be untruthful or to lack
credibility. He argues the Federal Court has consistently stated that negative
credibility findings must be made in clear and unmistakable terms and the Board
is required to give clear and cogent reasons for rejecting credibility (see Wilanowski
v Canada (Minister of Employment and Immigration), [1993] FCJ No 371, 154
NR 205 (FCA)). He cites Rayappu v Canada (Minister of Citizenship and
Immigration) (24 October 2012), IMM-8712-11 (FC) at paragraphs 2 to 7 [Rayappu]
and Sinnathamby v Canada (Minister of Citizenship and Immigration) (21
January 2013), IMM-3828-12 at paragraphs 3 and 4 [Sinnathamby] for
support. He submits the present case is indistinguishable from Rayappu.
[24]
Second, the applicant submits the Board erred in
law by ignoring evidence in concluding that he does not have a well-founded
fear of persecution. The reasons that he was targeted were because he was Tamil
and because he was believed to have been assisting the LTTE, which are reasons
of race and perceived political opinion. He submits the Board was wrong to
dismiss this as simply extortion threats unrelated to his race and perceived
political opinion. He cites the following cases which he argues are similar to
the case at bar.
[25]
In Mohan v Canada (Minister of Citizenship
and Immigration), 2011 FC 847 at paragraph 12, [2011] FCJ No 1061 [Mohan],
this Court found that the Board committed an error by failing to adequately consider
the role of the applicants’ ethnicity. Similarly in SBG v Canada (Minister
of Citizenship and Immigration), 2011 FC 648, [2011] FCJ No 826 [SBG],
this Court overturned the Board’s decision and found that the Board failed to
consider the reasons of the applicants being targets might be due to “mixed motives” of both wealth and ethnicity. In Sinnathamby
at paragraph 6, this Court found “[t]he involvement of
the government army and its paramilitary allies in detention and extortion with
apparent impunity can be evidence of a form of persecution against an ethnic
group, Tamils in northern Sri Lanka.”
[26]
Referencing the National Documentation Package,
on page 3 of a report by International Crisis Group of 18 July 2011, the
applicant submits the new government ministers promote extrajudicial killings,
abductions and extortions of Tamil civilians. The applicant submits the reason
he is targeted for extortion is because he is a Tamil and the Board erred by
concluding on the basis of this evidence which it accepted, that he does not
have a well-founded fear of persecution by reason of race.
[27]
Third, the applicant submits this error is not
saved by the Board’s discussions regarding a change of circumstances.
V.
Respondent’s Written Submissions
[28]
The respondent submits the standard of review is
reasonableness and attracts deference by this Court (Dunsmuir at
paragraphs 47, 48 and 53).
[29]
First, it submits the applicant does not have
nexus to Convention grounds. It argues based on this Court’s recent decisions,
although country condition evidence shows Sri Lankan paramilitaries target
individuals for extortion, this does not provide a nexus to the Convention
definition (see Nageem v Canada (Minister of Citizenship and Immigration),
2012 FC 867 at paragraphs 9, 16 and 18, [2012] FCJ No 933; Kuruparan v
Canada (Minister of Citizenship and Immigration), 2012 FC 745 at paragraphs
128 to 132, [2012] FCJ No 796; and Marthandan v Canada (Minister of
Citizenship and Immigration), 2012 FC 628 at paragraph 19, [2012] FCJ No
624).
[30]
The respondent argues the applicant’s quote
stating the EPDP targeting their victims based on ethnicity is selective. It
argues the information contained in the referenced chapter “Dealing with the Past” does not state the EPDP target
victims based on their Tamil ethnicity.
[31]
It submits the applicant’s argument surrounding
the Board’s analysis of the documentary evidence and whether or not he would be
at risk as a Tamil male is a request to reweigh the evidence and hence, not
this Court’s role to determine (see Jiang v Canada (Minister of Citizenship
and Immigration), 2008 FC 635 at paragraph 15, [2008] FCJ No 808).
[32]
Second, the respondent submits the concepts of
credibility and subjective fear are intertwined. It argues an assessment of
subjective fear necessitates answering the question: Do I believe the
applicant’s allegations, and thus his fear arising from said allegations? This
question has two components: 1) Do I believe the applicant’s allegations that
he will be persecuted by the EPDP or Sri Lankan government due to his profile?
and 2) Do I believe that the applicant has a fear of this outcome? It submits
if the first question is answered in the negative, then logically the second
question must also be in the negative (see Jimenez v Canada (Minister of
Citizenship and Immigration), 2010 FC 727 at paragraph 4, [2010] FCJ No
879).
[33]
It notes that the applicant has not challenged
the underlying findings by the Board, such as whether or not the applicant is
being targeted for detainment, or whether the Board believed the applicant’s
claims. It argues the negative credibility findings that were not challenged
are determinative per se, and the failure to prove that they are
unreasonable is sufficient to defeat this application (see Cienfuegos v
Canada (Minister of Citizenship and Immigration), 2009 FC 1262 at
paragraphs 25 and 26, [2009] FCJ No 1591 [Cienfuegos]).
[34]
Third, the respondent submits the applicant
fails to challenge the Board’s alternative finding of changed country
conditions for the state protection finding (see Bolanos v Canada (Minister
of Citizenship and Immigration), 2012 FC 513 at paragraph 77, [2012] FCJ No
543).
VI.
Applicant’s Further Submissions
[35]
The applicant submits his arguments are not
based on a request to reweigh the evidence, rather the Board’s finding is
unreasonable and contrary to the evidence by reason of race and perceived
political opinion. Also, the Board did not make any findings of fact in its
decision that the applicant’s evidence is not credible. A statement that the
Board does not believe his fear of persecution is well-founded is not a
negative credibility finding.
[36]
With respect to the respondent’s argument of
state protection, the Board only mentioned Sri Lanka’s change of circumstance
since the war ended, not a state protection finding.
VII.
Respondent’s Further Submissions
[37]
With respect to the issue of change in country
conditions, the respondent argues the Board was reasonable to note that the
UNHCR advises refugee protection for people within the profile of any of the
at-risk groups and that the applicant did not fall under this group. This
indicates the applicant’s objective fear was undermined.
[38]
The respondent submits for a positive finding of
well-founded fear, the refugee claimant must meet both requirements of the
bipartite test, demonstrating a subjective fear and an objective fear of
persecution (see Sellan v Canada (Minister of Citizenship and Immigration),
2008 FCA 381 at paragraph 3, [2008] FCJ No 1685 [Sellan]).
VIII.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[39]
With respect to the reasonability of the Board’s
decision, both the applicant and the respondent submit the standard of review
is reasonableness. I agree.
[40]
Here, the issue under review involves a mix of
fact and law. It has been established in Dunsmuir at paragraph 53, that
the standard of reasonableness is applied “where the
legal and factual issues are intertwined with and cannot be readily separated”
(see also Aguebor v Canada (Minister of Employment and Immigration),
[1993] FCJ No 732 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). This means that I should not intervene if the decision is transparent,
justifiable, intelligible and within the range of acceptable outcomes (see Dunsmuir
at paragraph 47; and Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at paragraph 59, [2009] 1 S.C.R. 339). As the Supreme Court held in Khosa
at paragraphs 59 and 61, a court reviewing for reasonableness cannot substitute
its own view of a preferable outcome, nor can it reweigh the evidence.
B.
Issue 2 - Was the Board’s decision reasonable
under section 96 of the Act?
[41]
A Convention refugee is defined in section 96 of
the Act as:
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96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
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96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
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(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
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a) soit se trouve
hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette
crainte, ne veut se réclamer de la protection de chacun de ces pays;
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[42]
I will first examine the Board’s credibility
finding and then the Board’s analysis under section 96.
[43]
First, the applicant is at issue with the Board’s
credibility finding. Here, I agree with the applicant that the Board’s credibility
finding lacks transparency.
[44]
The Board started its reasoning by stating the
determinative issue is credibility, but it did not explicitly draw any negative
inferences from any of the applicant’s submissions or evidence. Although the
credibility finding does not provide explicit factual references, this alone
would not render the entire decision unreasonable. It appears to me that the
subsequent parts of the decision provide a rational basis for a negative
finding of subjective fear which explains the Board’s finding of a lack of
credibility.
[45]
Second, the applicant is at issue with the
Board’s analysis of the applicant’s circumstances and the Convention grounds.
Here, I find the Board’s analysis is reasonable.
[46]
Whether or not the applicant faces a serious
possibility of persecution as a result of LTTE ties is a factual determination
based on the weighing of evidence (Rayappu at paragraphs 5 and 6).
[47]
I disagree with the applicant’s reliance on Mohan
and SBG. In Mohan, this Court overturned a Refugee Protection
Division decision because the Board failed to explain why “the criminality they faced was not due to their membership
in that particular group” (Mohan at paragraph 12). In SBG,
this Court granted the judicial review because the Board failed to adequately
examine the racial motive in robberies. This is however, not the case in the case
at bar.
[48]
Here, in its analysis of the applicant’s
profile, the Board reviewed a variety of evidence. This evidence includes the
circumstances surrounding the four times the applicant was detained, the
applicant’s ability to move around the country without problem, a number of
country documentary evidence, the guidelines from the UNHCR and Sri Lanka’s
changing circumstances. It appears to me that the Board’s analysis related to
the applicant’s detainment and the applicant’s ability to move within the country
without problems amount to a lack of subjective fear.
[49]
Further, although the Board found the applicant
might face post-war extortion, it determined the applicant’s fear for future
crime is not “linked to race, ethnicity, religion,
political opinion or any other Convention ground.” Here, the Board did
not only examine the applicant’s risk of extortion, but also if the applicant’s
fear from this risk was linked to any of the Convention grounds, including race
and political opinion which could be derived from the LTTE ties if such were
established. It appears to me this is a valid determination of the applicant’s
objective fear.
[50]
For there to be a positive finding of
well-founded fear, a refugee claimant must meet both requirements of the
bipartite test, demonstrating both a subjective fear and an objective fear of
persecution (Sellan at paragraphs 2 to 4).
2. The Judge also certified a
question, namely: where there is relevant objective evidence that may support a
claim for protection, but where the Refugee Protection Division does not find
the claimant’s subjective evidence credible except as to identity, is the
Refugee Protection Division required to assess that objective evidence under s.
97 of the Immigration and Refugee Protection Act?
3. In our view, that question should
be answered in the following way: where the Board makes a general finding that
the claimant lacks credibility, that determination is sufficient to dispose of
the claim unless there is independent and credible documentary evidence in
the record capable of supporting a positive disposition of the claim. The
claimant bears the onus of demonstrating there was such evidence.
4. This leads to the question of
whether there was in the record before the Board any evidence capable of
supporting a determination in the respondent’s favour. In our view, there was
clearly no such evidence in the record. We are satisfied that had the Judge
examined the record, as he was bound to, he would no doubt have so concluded.
In those circumstances, returning the matter to the Board would serve no useful
purpose.
[Emphasis added]
[51]
Here, unsubstantiated LTTE ties in the absence
of support from independent documentary evidence would undermine the applicant’s
objective fear, even in light of a credibility finding that lacks explicit
factual references. In this case, the Board found that the applicant’s fear was
not well-founded after a general finding of a lack of credibility which went to
the subjective fear component and then noted there is no support from the
documentary evidence for a finding of objective fear. Although the Board’s
reasoning could use some clarification, I can still understand the reasons of
its determination.
[52]
Lastly, I agree with the applicant that just
because the Board examined changing circumstances, this does not mean it has
done a separate state protection analysis. This, however, does not impact the reasonableness
of the decision.
[53]
Therefore, I find the Board’s analysis under
section 96 was cumulatively reasonable.
[54]
For the reasons above, I would deny this
application.
[55]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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