Docket: IMM-6458-24
Citation: 2025 FC 556
Vancouver, British Columbia, March 25, 2025
PRESENT: The Honourable Mr. Justice Ahmed
BETWEEN: |
ARACHCHIGE CHRISHANTHA RANGAJEEWA SALGADO |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant, Arachchige Chrishantha Rangajeewa Salgado, seeks judicial review of a negative decision of the Refugee Appeal Division (“RAD”
) dated March 22, 2024, which confirmed the decision of the Refugee Protection Division (“RPD”
) that the Applicant is not a refugee or a person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”
).
[2] The Applicant submits the RAD made unfounded implausibility findings and failed to assess whether there are compelling reasons for the Applicant to hold refugee status following a change in the Applicant’s circumstances. The Applicant further submits the RAD applied the incorrect legal standard and made speculative and unreasonable findings in its assessment of risk.
[3] I agree, in part, with the Applicant. I do not find the RAD made unfounded implausibility determinations, erred with respect to subsection 108(4) of the IRPA, or applied the incorrect legal standard. However, I agree with the Applicant that the RAD’s risk assessment is at odds with the record and therefore unreasonable. This application for judicial review is allowed.
II. Background
[4] The Applicant is a citizen of Sri Lanka.
[5] In July 2022, the Applicant’s daughter was sexually assaulted. The Applicant reported the assault to the local police in Negombo, who did not follow up on the incident. The Applicant filed a complaint with the police headquarters in Colombo.
[6] The following day, the Negombo police asked the Applicant to bring his daughter to the police station. They isolated his daughter and questioned her. She emerged shaken and retraumatized.
[7] The Applicant once again contacted the police headquarters in Colombo. He was told that the owner of the bus where his daughter had been assaulted was an influential person. The police advised him to stop pursuing the criminal investigation and not risk his daughter’s future.
[8] In September 2022, the Negombo police contacted the Applicant. They asked him to pay a bribe for the police to arrest the individuals who assaulted his daughter. When the Applicant refused, they struck him, verbally abused him, and threatened to release a photo of his daughter to the media. The Applicant made the requested payment.
[9] In November 2022, the Negombo police told the Applicant they had made arrests in connection with his daughter’s assault. They asked him to bring his daughter to the police station to identify her attackers. The Applicant refused, but the police insisted that he and his daughter attend at the station.
[10] When the Applicant and his daughter arrived, the police wanted the Applicant’s daughter to identify the perpetrators alone. The Applicant refused to leave his daughter’s side. The police became angry and warned the Applicant that there would be consequences for his actions.
[11] In January 2023, the Applicant and his daughter left Sri Lanka for Canada.
[12] In February 2023, the Applicant’s spouse told the Applicant that the police had come to the house asking about him and requesting his daughter’s presence at the police station. Shortly afterward, the Applicant and his daughter applied for refugee protection.
[13] In December 2023, the RPD granted refugee protection to the Applicant’s daughter but not to the Applicant. The Applicant appealed this decision to the RAD.
[14] In March 2024, the RAD confirmed the RPD’s decision. The RAD found that “the [Applicant] will not face a serious possibility of persecution nor will he face a risk to his life, risk of cruel and unusual treatment or punishment or a danger of torture on a balance of probabilities as a result of either the ongoing case or the complaints he lodged.”
This is the decision that is presently under review.
III. Issue and Standard of Review
[15] The sole issue in this application is whether the RAD’s decision is reasonable.
[16] The parties submit that the applicable standard of review is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16–17, 23–25 (“Vavilov”
)). I agree.
[17] Reasonableness is a deferential, but robust, standard of review (Vavilov at paras 12-13, 75, 85). The reviewing court must determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible and justified (Vavilov at para 15). A decision that is reasonable as a whole is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker (Vavilov at para 85). Whether a decision is reasonable depends on the relevant administrative setting, the record before the decision maker, and the impact of the decision on those affected by its consequences (Vavilov at paras 88-90, 94, 133-135).
[18] For a decision to be unreasonable, the applicant must establish the decision contains flaws that are sufficiently central or significant (Vavilov at para 100). Not all errors or concerns about a decision will warrant intervention. A reviewing court must refrain from reweighing evidence before the decision maker, and it should not interfere with factual findings absent exceptional circumstances (Vavilov at para 125). Flaws or shortcomings must be more than superficial or peripheral to the merits of the decision, or a “minor misstep”
(Vavilov at para 100).
IV. Analysis
[19] The Applicant submits the RAD’s decision is unreasonable. The Applicant submits the RAD erred by making implausibility findings despite his circumstances not meeting the “clearest of cases”
standard set out at paragraph 7 of Valtchev v Canada (Minister of Citizenship and Immigration), 2001 FCT 776 (“
Valtchev”
)). The Applicant submits the RAD failed to consider whether there were “compelling reasons”
for the Applicant to hold refugee protection following a change in circumstances,
pursuant to subsection 108(4) of the IRPA. The Applicant submits the RAD applied the incorrect standard in its assessment of risk by evaluating whether he had established a “likely” risk of persecution
, rather than a risk that was “more than a mere possibility.”
The Applicant further submits the RAD’s risk assessment is speculative and not justified in light of the evidentiary record.
[20] The Respondent submits the RAD’s decision is reasonable. The Respondent submits that the RAD’s findings were based on the sufficiency of the evidence, rather than the plausibility of the Applicant’s claims. According to the Respondent, the RAD correctly applied the balance of probabilities standard to the Applicant’s factual claims and the “more than a mere possibility”
standard to his allegations of risk. The Respondent further submits that the RAD was not obliged to assess “compelling reasons”
pursuant to subsection 108(4) of the IRPA, since the Applicant was not previously granted refugee protection. Consequently, the RAD made no reviewable error in dismissing the Applicant’s refugee claim.
[21] I agree, in part, with the Applicant. The Applicant is mistaken with respect to the RAD’s alleged implausibility findings, the need to consider “compelling reasons”
pursuant to subsection 108(4) of the IRPA, and the legal standard applied by the RAD. However, I agree with the Applicant that the RAD’s risk assessment is unreasonable, as it is speculative and at odds with the evidentiary record.
[22] The Applicant’s submissions concerning the RAD’s alleged implausibility findings are meritless. Implausibility findings are fundamentally concerned with credibility (Zaiter v Canada (Citizenship and Immigration), 2019 FC 908 at para 8). In this case, the RAD did not impugn the Applicant’s credibility. Whether the Applicant’s circumstances constituted “the clearest of cases”
is therefore irrelevant to the reasonableness of the RAD’s decision (Valtchev at para 7).
[23] The RAD was similarly not obliged to consider “compelling reasons”
for the Applicant to hold refugee protection (IRPA, s 108(4)). The Applicant in this case was never granted refugee status. The RAD was therefore not obliged to consider “compelling reasons”
for the Applicant to hold refugee protection, despite its finding that a “change in circumstances”
had occurred (Contreras Martinez v Canada (Minister of Citizenship and Immigration), 2006 FC 343 at para 21).
[24] Furthermore, I find no error in the legal standard applied by the RAD. Citing two passages from the RAD’s decision, the Applicant submits the RAD erred by assessing his risk on the balance of probabilities standard, rather than the “more than mere possibility”
standard (Nguyen v Canada (Citizenship and Immigration), 2023 FC 251 at para 43; see also Adjei v Canada (Minister of Employment and Immigration), [1989] 2 FC 680, 1989 CanLII 9466 (FCA) at 682). I do not find this to be the case. In the first passage, the RAD finds the sexual assault case involving the Applicant’s daughter “would be unlikely to continue”
following the RPD’s positive determination of her refugee claim in 2023. This is a finding of fact. The balance of probabilities standard was correctly applied. In the second passage, the RAD finds “the prosecution of the [sexual assault] in Sri Lanka – the genesis of [the Applicant’s] claim – was unlikely to continue to cause him issues.”
The RAD does not specify what is meant by “issues.”
Although the paragraph in which this phrase occurs is focused on the issue of risk, the RAD uses the word “issues”
in a subsequent paragraph to refer to specific interactions between the Applicant and the police. As the text of the decision is ambiguous as to whether the RAD was referring to forward-facing risk, I am not persuaded that the RAD applied the incorrect legal test. Even if it had, this minor error would not warrant disturbing the decision as a whole.
[25] However, I agree with the Applicant that the RAD’s risk assessment is unreasonable. The RAD acknowledged that the Applicant faces two kinds of risk in Sri Lanka: risk flowing from his daughter’s sexual assault case and risk flowing from “the complaint he made about the local police.”
The RAD found the Applicant would no longer face risk from the open case, since “there is limited evidence”
the case remains open “given the passage of time.”
Moreover:
Even if the case is still open…it is unlikely to remain open given the change in circumstances – the [Applicant]’s daughter has been found to be a Convention refugee and is able to permanently remain in Canada. She is and will remain unavailable to participate in the local investigation into the crime.
For the same reasons, the RAD found the Applicant would no longer face risk due to his complaints about local police, stating [emphasis added]:
Further, I have independently considered the evidence and, for the reasons noted above, find the [Applicant] will not face a serious possibility of persecution nor will he face a risk to his life, risk of cruel and unusual treatment or punishment or a danger of torture on a balance of probabilities as a result of either the ongoing case or the complaints he lodged.
However, the RAD exclusively addressed the closure of the sexual assault case. The RAD does not explain how the closure of the sexual assault case would have a bearing on the risk the Applicant faces from having complained about the local police.
[26] The RAD appears to accept the RPD’s assessment on this point, noting that the RPD found the police “were not concerned about the complaint he filed against them.”
However, the RAD does not owe deference to the factual findings of the RPD. As noted throughout the decision, the RAD is tasked with undertaking an independent review of the evidence. During the RPD hearing, the Applicant stated: “I told the police that I was going to the headquarters to make a complaint because nothing was happening and then the officer stamped his feet and he yelled at me and said “you can do whatever you like but nothing is going to happen.””
The RPD member later asked the Applicant about the police’s attempt to extort him. When asked what happened when he refused to pay, the Applicant said:
[The police officer] got really mad, he stood up from his chair, came to me and slapped me in the face and punched me in the stomach and yelled at me and said “I am going to give the story of, I am going to go and tell the media what happened to your daughter and I am also going to give them a picture of your daughter”.
[27] In my view, this evidence demonstrates that the police were concerned about the prospect of a complaint against them. Yelling and the stamping of feet are not indicative of disinterest. The rapid escalation from shouting and threats to extortion and physical abuse further contradicts the RAD’s findings on this point. Although the police did say to the Applicant that “nothing is going to happen,”
I find this statement refers to the likelihood of the sexual assault case being resolved, rather than the likelihood that the Applicant would face retaliation. This is consistent with the Applicant’s Basis of Claim narrative, in which he paraphrased the same conversation as follows: “…the [police officer] got angry and told me that no matter wherever I go, I won’t be able to find [the individuals who assaulted his daughter].”
[28] Given the evidentiary record, I agree with the Applicant that the RAD’s risk assessment was speculative and unreasonable. The RAD provided no “rational chain of analysis”
linking its findings about the sexual assault investigation with the risk the Applicant would face for having complained about the local police (Vavilov at para 85). In my view, the RAD disregarded the evidence before it and provided deficient reasons that are contradicted by the record.
V. Conclusion
[29] For these reasons, I allow this application for judicial review. The RAD’s decision lacks a rational chain of analysis and is not justified in light of the evidence (Vavilov at paras 85, 126).
Email this Content