Docket: IMM-2434-15
Citation:
2016 FC 142
Toronto, Ontario, February 5, 2016
PRESENT: The
Honourable Madam Justice Simpson
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BETWEEN:
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GOWRY SANKER
NAGALINGAM
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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
[1]
The Applicant has applied for Judicial Review of
a negative decision dated May 8, 2015 made by a member of the Refugee
Protection Division of the Immigration and Refugee Board [the Board]. The Board
found that the Applicant is neither a convention refugee nor a person in need
of protection. This application is made to section 72(1) of the Immigration
Refugee Protection Act, S.C. 2001, c.27 [the IRPA].
I.
Background
[2]
The Applicant is a thirty one year old single
Tamil male. He is a citizen of Sri Lanka and his claim for protection is based
on his political opinion and race. The agents of persecution have been
identified as the army and the police.
[3]
The Applicant studied graphic design and
graduated in 2006. He worked for his father until 2009 when he became employed
as a graphic designer for Express Newspapers in Colombo. He worked there until
he fled Sri Lanka in July 2014. Express Newspapers publishes Virakesari - a
well-known Tamil newspaper.
[4]
Virakesari has been accused of promoting anti-government
views. Its staff and premises have suffered attacks by government and
paramilitary groups. The Applicant states in his Basis of Claim [BOC] form that
he had connections to many journalists and knew people who had been attacked.
The Applicant also alleges that he attended many pro-media rallies.
[5]
In July 2014, the Applicant was waiting for a
bus when he was kidnapped by unidentified people. He was detained in a dark
room for seven days, during which time he was questioned about his connection
to pro LTTE groups. While in captivity, the Applicant was interrogated once a
day for approximately one hour. During the interrogations, he was beaten with
batons and kicked. He was threatened with death if he went to the police.
[6]
The Applicant was released on July 25, 2014.
Thereafter, he went home, gathered his education documents and his press
credentials, and fled to his aunt’s house. The same day, he saw a doctor and
received treatment. At that time, the Applicant did not intend to leave Sri
Lanka and he testified that he had not previously been out of the country.
However, when the Applicant’s father joined him at the aunt’s house the
following day, he advised him to leave Sri Lanka. He arranged a smuggler
to take the Applicant to Dubai and on to the USA on an Indian passport. When
they arrived in the USA on September 7, 2014, the smuggler took the passport.
The Applicant was detained in the USA until October 21, 2014. Upon arrival in
Canada on November 18, 2014, he made his claim for protection.
II.
The Decision
[7]
The Board accepted that the Applicant is Sri
Lankan. The Board also accepted the medical evidence which showed that, at some
point, the Applicant had been a victim of torture. However, the Board concluded
that the Applicant had not attended pro-media rallies, had not been kidnapped
and tortured in July of 2014, and had not even been in Sri Lanka at that time.
The reasons for these findings were:
a)
The Applicant’s inability to explain why his
birth certificate was translated into English in February 2010;
b)
The Applicant’s failure to produce the pages of
his passport which would have shown his travel history and the fact that the
failure to produce those pages was not satisfactorily explained;
c)
The Applicant’s statements in his BOC that he
attended “many pro-press rallies” when, in fact,
he attended only three;
d)
The Applicant’s statement in his BOC that he “knew people who were attacked” when this was not
true. In fact, he gave inconsistent evidence about whether he had even met such
people;
e)
The Applicant did not produce any media reports
about the rallies, even though he said they had appeared on websites.
[8]
These credibility concerns, which have not been
challenged on this application, caused the Board to reject the authenticity of
two pieces of evidence [the Corroborating Evidence] which, if accepted, would
have shown that the Applicant was in Sri Lanka in July of 2014. The Corroborating
Evidence was:
a)
A handwritten doctor’s note dated July 25, 2014,
describing his treatment for burns and injuries caused by an iron rod;
b)
A letter from his employer’s branch manager of
July 26, 2014 saying that the Applicant was employed in July 2014, and that he
had been kidnapped and released that month and that he had participate in
pro-press protests. As well, the letter indicated that the newspaper had been
contacted about his kidnapping, and was told not to publish any information on
the subject.
The Issues
[9]
Was the rejection of the Corroborating Evidence unreasonable?
[10]
Was the failure to assess whether the
Applicant’s scars would lead to further persecution unreasonable?
A.
Issue I: The Corroborating Evidence
[11]
The Applicant relied on a decision of Mr.
Justice Rennie (as he then was) in Chen v Canada (Minister of Citizenship
and Immigration), 2013 FC 311. In that case, an applicant for
refugee protection testified that he had been a member of a Catholic house
church in Fujian Province in China until it was raided. He fled during the raid
and testified that a summons [the Summons] was served on his family, and that
other members of the church had been arrested and imprisoned. He produced the Summons
and a prisoner visiting card which he said had been issued to the wife of one
of the imprisoned worshippers.
[12]
The applicant’s evidence did not involve any
contradictions or inconsistencies, and there was nothing about his manner to
suggest a lack of credibility. However, the Board rejected his evidence because
it was inconsistent with documentary evidence which showed that Catholic parishioners
are rarely persecuted in Fujian. Then, because the applicant’s evidence was
contrary to the documentary evidence which the Board accepted, the Board
concluded that the raid on the church had not occurred.
[13]
The Board also concluded that the prison
visiting card was not genuine simply because it was inconsistent with its finding
that the raid had not occurred. Without additional reasons, it also rejected a
certificate of baptism and a letter from a Canadian priest. The Board took this
view even though the accused had answered questions about his knowledge of
Christianity in a forthright and accurate manner. Justice Rennie concluded
that:
A decision to reject certain aspects of the
evidence does not constitute, absent a negative credibility finding, carte
blanche to reject all of the remaining evidence. Each aspect of the evidence
must be assessed on its own merits.
[14]
In my view, this decision can be distinguished
and does not assist the Applicant because in this case, there were negative
credibility findings that have not been challenged. Further, in this case, the
Corroborating Evidence was assessed and dismissed because it could have been
created by the Applicant. Accordingly, in my view, the Board’s treatment of the
Corroborating Evidence was reasonable.
B.
Issue II: The Scars
[15]
The Applicant acknowledges that the Board was
not asked by counsel for the Applicant to consider whether the scars from past
torture would possibly lead to further persecution. In my view, if an Applicant
is represented by counsel, the Board is not obliged to consider possible
avenues of future persecution beyond those presented by an applicant.
Certification
[16]
No question was posed for certification for
appeal.
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