Date:
20160106
Docket:
IMM-685-15
Citation:
2016 FC 13
Ottawa, Ontario, January 6, 2016
PRESENT: The
Honourable Madam Justice Elliott
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BETWEEN:
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R.S.
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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.
BACKGROUND
[1]
This application for judicial review pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27, (Act) is of a decision of the Refugee Protection Division (RPD) dated
January 23, 2015 (Decision) in which the applicant’s claim for refugee
protection under sections 96 and 97 of the Act was rejected because it was
determined that the applicant was neither a Convention Refugee within section
96 of the Act nor a person in need of protection under subsection 97(1) of the
Act.
[2]
The Minister intervened in this case and
participated at the hearing before the RPD. The Minister took the position
that there was insufficient credible evidence to find the claimant a Convention
Refugee and the claimant is not a person in need of protection.
[3]
This matter was heard in camera and the facts of
this decision, including the applicant’s name have been anonymized by virtue of
an order of this Court to remove any information that could serve to disclose
the identity of the applicant or any of the applicant’s family members or
associates, including name, age, place of birth, and any similar information.
[4]
The applicant came to Canada on August 13, 2010
aboard the MV Sun Sea. He claimed refugee protection based on his fear of
persecution, risk of torture and risk to his life. He claimed he fears the i)
Sri Lankan Government, ii) the Sri Lankan Security Forces, iii) the deadly
paramilitary groups and the unlicensed White Vans EPDP, and iv) the LTTE.
[5]
For the reasons which follow I have determined
this application for judicial review shall be dismissed.
II.
DECISION UNDER REVIEW
A.
Overview
[6]
The RPD decision found the applicant was not
credible and the fear which was claimed was not well-founded. As an
alternative, the RPD found there was a change in circumstances of country
conditions and, on a balance of probabilities, the applicant would not face a
risk of persecution or harm if he were removed to his home country. The RPD
also found the applicant did not have a profile as a failed asylum seeker or a
passenger aboard the MV Sun Sea to support a sur place claim. The decision is
slightly over 25 pages long, 19 pages of which are analysis and findings.
Reference is made throughout the decision to jurisprudence of this court as
well as a wide variety of country condition documents.
[7]
The RPD was satisfied the claimant is a citizen
of Sri Lanka and is a Tamil from the Northern Province who came to Canada
aboard the MV Sun Sea. The applicant testified at the hearing in the Tamil
language using an interpreter to translate his testimony to English.
B.
Credibility Findings
[8]
The RPD found the determinative issue was
credibility. The critical findings by the RPD were that with respect to
credibility the claimant concocted a story that he was arrested by Sri Lankan
authorities then beaten, interrogated, and placed on conditions to report to
them. He also said that an armed group went to his home and tried to extort
money from him and when he refused they returned 15-16 times over a three-year
period and are still looking for him.
[9]
In rejecting the applicant’s story the RPD found
he “used a basic set of facts” that the Sri
Lankan government has a long record of torture and mistreatment and determined
that the evidence provided by the applicant was untrustworthy and unreliable.
[10]
The RPD found the applicant’s oral testimony
lacked important details and explanations such as:
1. the nature of the threat to him in his PIF was he would be shot but
in his testimony this was omitted
2. he crossed out the word ransom in his PIF and initialled the
change but could not explain it at his hearing
3. how he could stand up to the armed men to refuse to pay the money
extorted and yet fainted when they pointed a gun at him
4. he failed to mention in his PIF a similarly situated person but
raised it at the hearing
[11]
The RPD summarized its credibility findings as
being that “inconsistencies, vagueness, confusion and
incoherence in the claimant’s answers and explanations” led the panel to
find the claimant was not a victim of persecution in his country at the hands
of the SLA or any armed groups. They found he made the story up to advance his
refugee claim and “through exaggerations and
embellishments concocted a story of personal persecution”. Having made
that finding the RPD then determined at paragraph 31 of its decision, that:
Despite the documentary evidence, the oral
testimony and counsel’s written submissions, this panel finds no basis of a
subjective fear in this claim.
[12]
As a result, the RPD found there was no
subjective fear of persecution held by the applicant so the claim under section
96 of the Act was not proven.
C.
Change of Circumstances and Sur Place claim
[13]
The RPD considered whether there were changed
circumstances in Sri Lanka such that the reasons the applicant sought refugee
protection have ceased to exist. It acknowledged that when weighing changed
country conditions factors such as durability, effectiveness and substantiality
have to be taken into account and the more durable the changes are “the heavier they will weigh against granting the claim”
for protection.
[14]
The RPD acknowledged counsel for the applicant
submitted:
There is ample documentary evidence
indicating that the Sri Lankan government has repeatedly linked the MV Sun
Sea to the LTTE: the Sri Lankan High Commissioner in Australia told a Sri
Lankan newspaper that a ship called the Sun Sea was carrying 200 suspected LTTE
cadres.
[15]
Counsel then referred to favourable RPD
decisions saying there was a core set of facts which create a risk of
persecution and torture based on objective documentary evidence which is all
the same in all the MV Sun Sea claims and that is the reasoning which should be
applied to the applicant’s claim.
[16]
The RPD reviewed and summarized the Tamil
experience by referring to four different country condition documents. It
acknowledged that Tamils from North and East Sri Lanka suffered human rights
abuses at the hands of the LTTE and other groups. It also acknowledged the Sri
Lankan government declared victory over the LTTE in May 2009. The RPD then indicated
it relied on the July 5, 2010 UNHCR Guidelines and the December 21, 2012 UNHCR
Guidelines in concluding on a balance of probabilities that it did not believe
the applicant is considered by the Sri Lankan government and its security
forces to be an LTTE member or supporter or sympathizer and does not face the
risks contemplated if he were to return. The RPD also found the applicant is not
an individual to be considered in any of the four groups considered at risk by
the UNHCR in 2010 or an individual in any of the seven groups considered at
risk in the 2012 UNHCR report.
[17]
With respect to whether the applicant would be
suspected of links with the LTTE, the RPD found no credible evidence was
presented to indicate the applicant was suspected of any links to the LTTE when
he left Sri Lanka in August 2009, and there was no direct or indirect evidence
indicating he was or is a wanted person or on a security alert list of the
government. The panel found the applicant would not face a serious risk of
persecution upon his return to Sri Lanka based simply on his identity as a
Tamil male from northern Sri Lanka who travelled on the MV Sun Sea as he had
little or no profile with Sri Lankan authorities and he expressed no links to
or sympathies with the LTTE.
[18]
The panel found it important that Canadian law
would find any individual determined to be a member of the LTTE to be ineligible
to apply for refugee status or excluded from refugee protection and those had
not been claimed against the applicant. Based on that, the panel found it is:
reasonable to expect that if Sri Lankan
officials come to know that the claimant was aboard the MV Sun Sea, they
would also have logically concluded that Canadian officials investigated
whether or not he had ties to the LTTE.
[19]
The panel reviewed various actions taken by the
Sri Lankan government, both positive and negative. It considered the Danish
Immigration Service Report on Human Rights and Security Issues Concerning
Tamils in Sri Lanka, portions of which cover Tamils returning from abroad to
live in Jaffna. The report found that refugees from abroad would not be at
particular risk when returning to Sri Lanka and they were distinguished from
refugees returning from camps within Sri Lanka.
[20]
Relying on Li v Canada (Minister of
Citizenship and Immigration), 2005 FCA 1, the RPD identified the test under
sections 97(1)(a) and (b) of the Act as being that:
i.
there must be persuasive evidence, on a balance
of probabilities, establishing the facts on which a claimant relies to say he
or she faces a substantial danger of being tortured or of having cruel and
unusual treatment or punishment inflicted upon his or her return; and
ii.
the danger or risk must be such that it is more
likely than not that he or she would be tortured or subjected to other cruel
and degrading treatments.
[21]
The RPD also relied on Yusuf v Canada (Minister
of Employment and Immigration), [1995] 1 FC 629 (FCA) that “changed circumstances” is a question of fact and the
only test is “does the claimant now have a well-founded
fear of persecution?”
[22]
The RPD concluded that although there are many
negative reports on Sri Lanka, when considering the totality of the evidence in
this case the situation, while not perfect, is not such that the claimant will
be persecuted due to any Convention ground or harmed pursuant to section 97 of
the Act as the Applicant is not, on a balance of probabilities, perceived to be
a LTTE member and would not likely be targeted by the Sri Lankan government.
III.
Standard of review
[23]
The parties agree, as do I, that the issues
before me involve decisions by the RPD involving questions of mixed fact and
law therefore the standard of review for the Decision is reasonableness. Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47 (Dunsmuir).
[24]
On a reasonableness review I will be determining
whether the decision-making process was justified, transparent and intelligible
and whether the decision itself falls within the range of possible, acceptable
outcomes which are defensible in respect of the facts and law. Dunsmuir at
para. 47.
IV.
Was the RPD decision reasonable?
A.
The Credibility Findings
[25]
The Applicant says the panel failed to consider
the totality of the evidence in assessing his credibility. In particular he
alleges the panel seized upon minor slipups on insignificant issues such as his
oral testimony was not as detailed as his PIF and at one point the panel
unreasonably concluded the applicant was confused with respect to the word “ransom” when in fact any confusion was caused by the
fact that the interpreter used the wrong word in English.
[26]
Counsel for the applicant reviewed a number of
alleged inconsistencies the panel relied upon such as who was targeted by the
armed group, failing to mention a similarly situated person in his PIF and
testimony regarding whether there actually was money with which to pay the armed
group. It was submitted that the panel’s interpretation of the applicant’s
answers was either wrong or not reasonable.
[27]
The applicant then says the adverse credibility
findings tainted the overall decision and cites both Becerra Vazquez v
Canada (Citizenship and Immigration), 2011 FC 9 and Chen v Canada
(Citizenship and Immigration), 2012 FC 510 to support his position that the
Decision must be quashed because of that flaw.
[28]
The respondent submitted that determining
credibility is at the heartland of the RPD’s jurisdiction and expertise as a
specialized tribunal. As a result they should be accorded a high level of
deference. It also submits the applicant is conducting a microscopic
assessment of the Decision by referring to selected portions of the transcript
rather than the entire record.
[29]
With respect to possible misinterpretation of
words when translated to English, the respondent points out that it would mean
two different interpreters (in the PIF and at the hearing) each made the same
wrong interpretation. The respondent says any argument now by the applicant
that he did not understand questions is without merit as he was represented by
counsel and the issue was raised by counsel, not the applicant, who at other
times did tell the RPD that he did not understand the question.
B.
The Sur Place Claim
[30]
The applicant says the RPD analysis of the
applicant’s sur place claim suffers from three related errors:
1.
it dealt with whether the applicant was
identified as an LTTE member at the time he left Sri Lanka rather than
whether he would be identified as such upon his return as result of his
voyage on the MV Sun Sea;
2.
it failed to consider the serious risk of
torture from the interrogation process used to obtain information about which
individuals aboard the MV Sun Sea are LTTE and which are not;
3.
it failed to consider each of the risk factors
amounting to persecution as a whole and instead performed a disjunctive
analysis.
[31]
The applicant says the panel did not conduct a
thorough analysis of the effect of his having travelled on the MV Sun Sea, which
was a central ground of risk raised by him. Furthermore, he submits the three
related errors noted above show the analysis was faulty. He relies on
decisions of this Court in Rajadurai v Canada (Minister of Citizenship and
Immigration), 2013 FC 532 and B407 v Canada (Minister of Citizenship and
Immigration), 2013 FC 1085, that only looking at whether he had already
been linked to the LTTE as opposed to whether he would be so linked upon his
return is an error which requires the Decision to be quashed.
[32]
The applicant also says with respect to his
passage on the MV Sun Sea that the panel ignored “compelling
objective evidence that the Sri Lankan authorities perceive the boat to be
linked to the LTTE” and that torture is routinely used to get
information about the LTTE.
[33]
In response, the respondent says:
1. the RPD made its finding based on the totality of the evidence
including the lack of credibility of the applicant and a review of objective
country condition documents;
2. contrary to the applicant’s submission the RPD specifically found
that there was insufficient evidence to suggest the Sri Lankan government would
find the Applicant had links to the LTTE by virtue of having travelled to
Canada on the MV Sun Sea alone;
3. the RPD considered that Canada considers the LTTE to be a terrorist
organization and if Canada identified the applicant as being LTTE he would have
been deemed inadmissible for refugee protection and have been ordered deported;
therefore, although a number of LTTE members were on the MV Sun Sea,
that in itself was not sufficient to establish his claim.
[34]
The respondent submits the Decision is
reasonable and, when considered in context, the way in which the applicant was
treated before he left Sri Lanka, the fact that he left legally and he makes no
claim to be an LTTE sympathizer, all support the finding that he had no LTTE
profile before he left Sri Lanka.
[35]
The respondent relies upon the decision in S.K.
v Canada (Minister of Citizenship and Immigration), 2013 FC 78 to say that it
cannot be assumed there is more than a mere possibility that all MV Sun Sea
passengers will be tortured and the question is whether any particular claimant
will be tortured, which requires consideration of the specific circumstances of
that claimant, and whether the authorities are likely to conclude he was
associated with the LTTE.
[36]
Similarly, the respondent relies upon B198 v
Canada (Minister of Citizenship and Immigration), 2013 FC 1106 (B198) to
support the RPD finding that when the applicant had no real or suspected ties
to the LTTE when he was in Sri Lanka and he left legally, simply being a
passenger on the MV Sun Sea would not be enough to create a risk.
C.
Analysis
[37]
The RPD made several non-contentious findings,
including that the applicant was questioned once in 2006 and again in 2007,
which were the only two contacts with the army. He also obtained a passport
shortly after his second detention and in March 2010 passed through checkpoints
without incidence. Ultimately, the applicant successfully left Sri Lanka. In
the end, the Applicant’s sur place claim fell to be determined on whether
passage on the MV Sun Sea in and of itself could establish his section 97
claim.
[38]
The applicant is picking and choosing particular
instances where the RPD may have misinterpreted some of his testimony but, even
if that is accurate (which is not a finding I need to make one way or the
other) it ignores the ‘big picture’, which is that the applicant even by his
own admission was not and is not an LTTE sympathizer. The credibility findings
by the RPD were well supported by reference to the facts and there were
extensive, detailed and lucid reasons for making the findings. The applicant
is, in effect, asking the Court to re-weigh the evidence but that function is not
within the purview of the Court.
[39]
This Court has on at least 60 prior occasions dealt
with refugee claims made by passengers on either the MV Sun Sea or its sister
ship the Ocean Lady. In some cases passage on the ship was sufficient to found
the claim while in other cases it was not. Justice Kane in B198 at
para. 66 noted that “despite what appear to be
different approaches to similar situations, no two claims are the same. The
role of the Court is to consider the reasonableness of the Board’s decision,
not to impose its own determination” and then referred to the following
passage from the decision by Justice Snider in P.M. v Canada (Minister of
Citizenship and Immigration), 2013 FC 77:
[17] Moreover, and more importantly, the
decision is reviewable on a standard of reasonableness. It is possible for
different conclusions to be reached on similar facts. I acknowledge that the
Applicant put forward a rational line of reasoning for finding that the
Applicant was at risk because of his passage on the M/V Sun Sea.
However, that does not mean that the line of reasoning followed by the Board is
unreasonable. The existence of a range of possible outcomes is the hallmark of
the reasonableness standard and is the foundation of the deference owed to
decision makers. Whether this Applicant would face more than a mere possibility
of persecution is a factual question to be determined by the Board. While I or
another panel member might have come to a different conclusion, the decision of
this Board was reasonably open to it on this particular evidentiary record. The
Court should not intervene.
[40]
I agree completely with these statements. The
onus is on the applicant to establish his claim. It is the responsibility of
the RPD to determine whether the evidence presented by the applicant is
credible and trustworthy and then apply the law to the facts as found. The RPD
is a specialized tribunal and assessing whether the evidence is credible and
trustworthy is within the particular expertise of the RPD.
[41]
While findings by the RPD, as with any
adjudicator, are not infallible, in this particular case I am satisfied the
panel fairly considered the evidence and provided detailed reasons for
rejecting the applicant’s claim. This enables the Court to determine why the
panel came to the conclusion it did and whether it applied the correct legal
tests in arriving at the Decision. The record before the panel supports the Decision
and is within the range of possible, acceptable outcomes. Whether I would have
come to the same conclusion or not is immaterial when the RPD has performed the
function assigned to it by Parliament and has met the Dunsmuir requirements of
reasonableness.
[42]
As the reasons are justified, transparent and
intelligible and the conclusion is within the range of possible, acceptable
outcomes, defensible on the facts and law, the application for judicial review
is dismissed.
[43]
Neither party submitted a question for
certification nor do I find one exists on these facts.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
The application for judicial review is
dismissed.
2.
There is no serious question of general
importance for certification.
“E. Susan Elliott”
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