Docket: IMM-929-16
Citation:
2016 FC 1160
Ottawa, Ontario, October 19, 2016
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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VINUSHAN
VIJAYAKUMAR
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
Vinushan Vijayakumar seeks judicial review of a
decision of the Refugee Appeal Division [RAD] of the Immigration and Refugee
Board. The RAD confirmed the determination of the Refugee Protection Division
[RPD] that Mr. Vijayakumar is neither a Convention refugee nor a person in need
of protection pursuant to ss 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA].
[2]
For the reasons that follow, I find that the RAD
reasonably excluded the new evidence offered by Mr. Vijayakumar in support of
his appeal pursuant to s 110(4) of the IRPA. The RAD’s assessment of the
remaining evidence was also reasonable. The application for judicial review is
therefore dismissed.
II.
Background
[3]
Mr. Vijayakumar is an ethnic Tamil from northern
Sri Lanka. He arrived in Canada on October 31, 2014 and made a refugee claim.
[4]
According to Mr. Vijayakumar, his father was a
prominent member of the Liberation Tigers of Tamil Eelam [LTTE]. His father was
killed more than twenty years ago, when Mr. Vijayakumar was just one year
old. Mr. Vijayakumar claimed that in 2009 he was abducted by five men,
blindfolded, and beaten with a metal rod while he was questioned about his
father. He was abducted a second time in 2010, questioned about his connections
to the LTTE, and beaten with a stick. In 2014, he was held by airport security
officials for a day and a half, asked about his father, and beaten. Mr.
Vijayakumar alleged that he would face persecution as a Tamil with suspected
links to the LTTE if he returned to Sri Lanka.
[5]
The RPD conducted hearings into Mr.
Vijayakumar’s refugee claim on December 10, 2014 and September 22, 2015. It
rejected the claim on November 5, 2015. The determinative issues were Mr.
Vijayakumar’s credibility and whether his profile as a Tamil whose father was
active in the LTTE more than twenty years ago would expose him to persecution
in Sri Lanka today.
[6]
Mr. Vijayakumar appealed the RPD’s decision to
the RAD. The RAD dismissed his appeal on February 9, 2016.
III.
Decision under Review
[7]
Mr. Vijayakumar submitted new evidence in
support of his appeal. The RAD concluded that this evidence did not meet the
statutory requirements of 110(4) of the IRPA. While the RAD accepted that the
documents were not available prior to the RPD’s decision, it concluded that the
information they contained could have been produced to the RPD with reasonable
diligence. The RAD also found that the evidence was not material, in that it
could not affect the outcome of the case. The RAD summarized its conclusion on
this point as follows:
The primary issue here is not how his father
died specifically, but that his father was working with or for the LTTE when he
died. The RPD recognizes that “it is possible that his father had connections
to the LTTE” and nowhere in the Decision does the RPD deny that the Appellant’s
father was connected to the LTTE. The letters submitted are “not new”. These
documents will not be allowed as new evidence.
[8]
The RAD found only one error in the RPD’s
decision, namely its failure to acknowledge that Mr. Vijayakumar had been
detained and questioned by the police when he returned to Sri Lanka from
Vietnam in 2014. However, the RAD found that this was because Mr. Vijayakumar
had been deported following his use of fraudulent documents to enter Vietnam.
There was no evidence to suggest that he was stopped because of his family
background. The RAD noted that Mr. Vijayakumar was subsequently released
without conditions.
[9]
The RAD found insufficient evidence to establish
that Mr. Vijayakumar is currently of interest to the Sri Lankan authorities.
The RAD concluded that “[a]s a Tamil, it is generally
thought by the Sinhalese majority that [Mr. Vijayakumar] would support the
LTTE. This may give rise to discrimination in some areas of Sri Lanka, however,
there is insufficient evidence to convince the RAD that this would give way to
persecution.”
IV.
Issues
[10]
This application for judicial review raises the
following issues:
A.
Did the RAD reasonably reject the new evidence
submitted by Mr. Vijayakumar?
B.
Did the RAD reasonably conclude that Mr.
Vijayakumar will not be persecuted if he returns to Sri Lanka?
V.
Analysis
[11]
Decisions of the RAD concerning the admission of
new evidence under s 110(4) of the IRPA and its assessment of the evidentiary
record involve questions of mixed fact and law, and are subject to review by
this Court against the standard of reasonableness (Canada (Citizenship and
Immigration) v Singh, 2016 FCA 96 at paras 23 and 29 [Singh]; Canada
(Minister of Citizenship and Immigration) v Huruglica, 2016 FCA 93 at para
35; Ngandu v Canada (Citizenship and Immigration), 2015 FC 423 at para
12). The Court will intervene only if the decision falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law” (Dunsmuir v New Brunswick, 2008
SCC 9 at para 47 [Dunsmuir]).
A.
Did the RAD reasonably reject the new evidence
submitted by Mr. Vijayakumar?
[12]
The new evidence that Mr. Vijayakumar sought to
adduce before the RAD consisted of affidavits and letters purporting to provide
further details of the circumstances surrounding his parents’ deaths and
subsequent events occurring in 2009, 2010 and 2014. All of these events
preceded the RPD’s decision. Mr. Vijayakumar says that the documents were
relevant to the adverse credibility findings of the RPD, and he could not have
produced them earlier because the RPD’s rejection of his testimony was not
foreseeable.
[13]
The RAD disposed of this argument as follows:
In this case, even though the letters were
written post-hearing, the information in them was available to the claimant at
any time prior to the hearing had he requested it. It is not for the RAD to
allow an Appellant to “patch the holes” in his RPD claim presentation by
allowing into evidence at appeal, information or supportive documentation which
could have been presented at the hearing. The onus is clearly on the Appellant
and especially so if represented by counsel, to present his best possible case
to the RPD. Such presentation would reasonably include any and all supportive
evidence such as the affidavits now disclosed.
[14]
In my view, the RAD’s rejection of the new
evidence offered by Mr. Vijayakumar is supported by the Federal Court of
Appeal’s decision in Singh (at para 34):
34 There is no doubt that the
explicit conditions set out in subsection 110(4) have to be met. Accordingly,
only the following evidence is admissible:
• Evidence that
arose after the rejection of the claim;
• Evidence that
was not reasonably available; or
• Evidence that
was reasonably available, but that the person could not reasonably have been
expected in the circumstances to have presented, at the time of the rejection.
[15]
Subsection 110(4) of the IRPA must be
interpreted narrowly. Evidence that simply corroborates facts or contradicts
the RPD’s findings does not fall within the meaning of “new
evidence” for the purposes of s 110(4) of the IRPA (Singh at
paras 35, 50, 51). In the words of the Federal Court of Appeal, “[t]he role of the RAD is not to provide the opportunity to
complete a deficient record submitted before the RPD, but to allow for errors
of fact, errors in law or mixed errors of fact and law to be corrected”
(Singh at para 54).
[16]
The RAD also rejected the new documents
submitted by Mr. Vijayakumar because they were not material to his claim. Given
the Federal Court of Appeal’s insistence that s 110(4) of the IRPA be applied
strictly, materiality is no longer a relevant threshold consideration (Singh
at paras 47-49). While the RAD’s consideration of the materiality of the
proposed new evidence was superfluous, this does not detract from the
reasonableness of its conclusion that the documents did not meet the statutory
requirements of s 110(4).
B.
Did the RAD reasonably conclude that Mr.
Vijayakumar will not be persecuted if he returns to Sri Lanka?
[17]
Mr. Vijayakumar says that the RAD’s conclusion
that he is not currently of interest to the Sri Lankan authorities was
unreasonable. He has not pointed to any specific shortcoming in the RAD’s
factual determinations, beyond taking issue with the adverse credibility findings.
He maintains that the threshold for persecution is low: more than a mere
possibility, established on the balance of probabilities (Muthuthevar v
Canada (Citizenship and Immigration), 2015 FC 1 at para 11; Alam v
Canada (Minister of Citizenship and Immigration), 2005 FC 4 at para 8). He
argues that the facts, as accepted by the RAD, meet this standard.
[18]
In my view, the RAD’s consideration of the
record was careful and cogent. I can find no reviewable error in the RAD’s
assessment of the evidence offered by Mr. Vijayakumar in support of his refugee
claim, nor in its conclusion that the treatment he endured in Sri Lanka, while
harsh, did not amount to state persecution. Mr. Vijayakumar is asking this
Court to re-weigh the evidence and come to a different conclusion. That is not
the role of the Court in an application for judicial review.
VI.
Conclusion
[19]
The RAD’s decision is justifiable, transparent
and intelligible, and falls within a range of possible, acceptable outcomes (Dunsmuir
at para 47). The application for judicial review is therefore dismissed.
[20]
Neither party proposed that a question be
certified for appeal.
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