Jayasinghe Arachchige v. Canada (Citizenship and Immigration)

Jayasinghe Arachchige v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2020-04-09
Neutral citation
2020 FC 509
File numbers
IMM-1986-19
Decision Content
Date: 20200409
Docket: IMM-1986-19
Citation: 2020 FC 509
Ottawa, Ontario, April 9, 2020
PRESENT: Mr. Justice Russell
BETWEEN:
WAJIRA SHATHA JAYASINGHE ARACHCHIGE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. INTRODUCTION
[1] This is an application under s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], for judicial review of the decision of the Refugee Appeal Division of the Immigration and Refugee Board of Canada [RAD], dated March 5, 2019 [Decision], which dismissed the Applicant’s appeal of the decision of the Refugee Protection Division of the Immigration and Refugee Board [RPD] denying the Applicant’s refugee and person in need of protection claim under ss 96 and 97 of the IRPA.
II. BACKGROUND
[2] The Applicant is a citizen of Sri Lanka and is of Sinhalese ethnicity. His spouse and three children currently reside in Sri Lanka.
[3] The Applicant left Sri Lanka for the United States of America [USA] in July 2011 on a multiple entry visitor’s visa. He remained in the USA until 2017 and then entered Canada and made a refugee and person in need of protection claim. The Applicant claims he fears persecution from the Sri Lankan government and certain persons who work for the government.
[4] The Applicant alleges that, in 2006, he was transferred from his government position at the Sri Lanka Ports Authority to a position in the Media Division of the Office of the Presidential Secretariat during Mahinda Rajapaksa’s presidency. The Applicant says that he was under the direct supervision of Mr. Silva and Mr. Kularathne during his time in the Media Division.
[5] The Applicant says that he was severely beaten and threatened by presidential security agents on April 11, 2009, at the direction of Mr. Silva and Mr. Kularathne. He states that this was the result of two incidents.
[6] First, the Applicant notes that Mr. Silva took issue with the fact that the Applicant was asked directly by the President’s private secretary in February 2009 to organize a photo exhibit in Australia that would criticize the Liberation Tigers of Tamil Eelam [LTTE], as he had done previously in Europe. The Applicant says that Mr. Silva took exception to the fact that the Applicant was given control over the event, and that Mr. Kularathne consequently removed an Australian visa sticker from the Applicant’s passport.
[7] Second, the Applicant states that Mr. Kularathne objected to the Applicant’s meeting with Mr. Prageeth Eknaligoda (a journalist critical of the Sri Lankan government whom Mr. Kularathne labelled an LTTE terrorist) and with Mr. Ruwan Ferdinandez, another journalist critical of the Sri Lankan government.
[8] Following an alleged violent interrogation of the Applicant on April 11, 2009, in which he was accused of associating with the LTTE and other enemies of the government, the Applicant says he returned to his prior position at the Sri Lanka Ports Authority. However, he claims that Mr. Kularathne continued to threaten him with death should he complain to the police and pressured him to return to his position in the Media Division because the Applicant was aware of certain government fraudulent activities. The Applicant says that he was blackmailed by Mr. Kularathne who threatened to label him as a terrorist because of his association with Mr. Eknaligoda. He states that the police inexplicably arrested him without any investigation, though he was eventually released after hiring a lawyer.
[9] As a result of this treatment in Sri Lanka, the Applicant says that he fled to the USA in July 2011, following the presidential election in Sri Lanka in 2010. The Applicant says that he did not make an asylum claim in the USA because he could not afford to do so.
[10] The RPD heard the Applicant’s claim on August 31, 2018, and rejected it that same day. In essence, the RPD found that there was less than a mere possibility that he would face persecution or serious harm due to the change in government in Sri Lanka because Mr. Eknaligoda had been cleared of any links to the LTTE, and because of the overall changes in Sri Lanka’s political climate.
[11] On March 5, 2019, the RAD rejected the Applicant’s appeal of the RPD’s decision. No oral hearing was held, nor did the Applicant request one.
III. DECISION UNDER REVIEW
[12] The RAD dismissed the Applicant’s appeal and confirmed the RPD’s decision that the Applicant was neither a refugee nor a person in need of protection pursuant to ss 96 and 97 of the IRPA. The RAD agreed with the RPD’s finding that there was no serious possibility that the Applicant would suffer persecution upon return to Sri Lanka. Nor were there grounds to believe that he would be tortured, subjected to cruel and unusual punishment, or killed.
[13] Specifically, the RAD found that: (1) there was insufficient evidence to demonstrate that the Applicant would suffer persecution or harm from Mr. Silva and Mr. Kularathne should he return to Sri Lanka; (2) the change in circumstances in Sri Lanka made it unlikely that the Applicant would be labelled an LTTE supporter and would, instead, allow the Applicant to work as a journalist without fear of persecution; (3) the Applicant would not face a serious risk of persecution in Sri Lanka as a failed refugee claimant, even though a higher level of screening might occur; (4) there was insufficient evidence to support the Applicant’s claim that he would be permanently deprived of his profession as a journalist; (5) the alleged incidents did not rise to the level of “compelling reasons” in light of the insufficient evidence submitted; and (6) a cumulative consideration of the alleged incidents did not rise to the level of persecution.
[14] First, the RAD found that there was less than a mere possibility that the Applicant would suffer persecution or harm from Mr. Silva and Mr. Kularathne. The RAD noted that the Applicant had failed to establish, on a balance of probabilities, that these persecutors remained employed in the Office of the President or that they continue to have an interest in the Applicant. Nor had he established that these individuals were linked to his unjustified arrest, or had attempted to harm his family members who remain in Sri Lanka. The RAD further noted that the Applicant had remained in Sri Lanka for approximately two years following the alleged incidents, and had continued to work for the government without suffering any further harm. He provided no evidence of his knowledge of fraudulent activities by his alleged persecutors but for the removal of his Australian visa sticker from his passport. Additionally, the RAD highlighted the fact that the persecutors could no longer accuse him of supporting the LTTE because of this association with Mr. Eknaligoda, as Mr. Eknaligoda had been cleared of having any links to the LTTE.
[15] Second, the RAD found that there had been a positive change in circumstances for the Applicant in Sri Lanka as the government under which the alleged incidents occurred was no longer in power, and the level of censorship of journalists has decreased since 2009. In addition, Mr. Eknaligoda has been exonerated. The RAD did not accept the argument that the Applicant would face a risk of persecution or harm because former president Mahinda Rajapaksa remained in a political position in Sri Lanka since there was no evidence that he was a direct agent of persecution.
[16] The RAD also found on a balance of probabilities that the Applicant had not established that he was considered a supporter of the LTTE. The RAD noted that the Applicant had been asked to organize anti-LTTE exhibitions, and was never approached by the Sri Lankan army or police regarding potential links to the LTTE. In addition, he was able to renew his passport, and was able to leave Sri Lanka freely. Moreover, the RAD did not find the Applicant’s explanation as to why he failed to claim asylum in the USA to be reasonable.
[17] Third, the RAD found that given the fact that he has lived abroad for a long period of time, the Applicant would likely be subjected to a higher level of screening at the airport upon return to Sri Lanka. However, it concluded that it is unlikely that this would amount to persecution. The RAD noted that the Applicant has a valid passport, was not considered an LTTE supporter, and there is no evidence to indicate that his name would appear on any immigration, intelligence, or criminal databases in Sri Lanka.
[18] Fourth, the RAD found that there was insufficient evidence to establish that the Applicant would be prevented from practising his profession as a journalist. In fact, the RAD noted that the documentary evidence shows that “independent media are active and express a wide variety of views” in Sri Lanka. In addition, the RAD concluded that, even if he were to face difficulties in finding work in his profession, this does not amount to persecution.
[19] Fifth, the RAD found that the alleged beating and threats suffered by the Applicant did not rise to such a level as to constitute a compelling reason for the Applicant to remain in Canada. The RAD noted that the Applicant did not establish, on a balance of probabilities, that there have been any repercussions for his mental or physical health as no medical evidence was submitted. Moreover, the RAD highlights the fact that the Applicant did not provide any evidence regarding his detention at the time of the arrest nor any evidence regarding the harm experienced.
[20] Sixth, the RAD noted that, even when these claims are considered cumulatively, the Applicant failed to show more than a mere possibility that he would experience persecution or harm in Sri Lanka. For these reasons, the RAD rejected the Applicant’s appeal.
IV. ISSUES
[21] The issues raised in the present matter are:
Did the RAD violate the Applicant’s right to procedural fairness?
Did the RAD apply the wrong legal test in assessing forward-looking risk?
Did the RAD err in its assessment of the risk of persecution or harm faced by the Applicant?
V. STANDARD OF REVIEW
[22] This application was argued prior to the Supreme Court of Canada’s recent decisions in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] and Bell Canada v Canada (Attorney General), 2019 SCC 66. This Court’s judgment was taken under reserve. The parties’ submissions on the standard of review were therefore made under the Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] framework. However, given the circumstances in this matter, and the Supreme Court of Canada’s instructions in Vavilov at para 144, this Court found that it was necessary to ask the parties to make additional submissions on the standard of review. I have applied the Vavilov framework in my consideration of the application. Although it has changed the applicable standard to my review of whether the RAD erred in applying the test for assessing forward-looking risk, it has not changed my conclusion.
[23] In Vavilov, at paras 23-32, the majority sought to simplify how a court selects the standard of review applicable to the issues before it. The majority did away with the contextual and categorical approach taken in Dunsmuir in favour of instating a presumption that the reasonableness standard applies. However, the majority noted that this presumption can be set aside on the basis of: (1) clear legislative intent to prescribe a different standard of review (Vavilov, at paras 33-52); and (2) certain scenarios where the rule of law requires the application of the standard of correctness, such as constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies (Vavilov, at paras 53-64).
[24] Prior to the Supreme Court of Canada’s decision in Vavilov, the Applicant did not explicitly make any submissions concerning the applicable standard of review in this case but, apart from the procedural fairness issues, applied the standard of reasonableness throughout its submission. Meanwhile, prior to the Vavilov decision, the Respondent submitted that the standard of reasonableness applied to all of the issues raised.
[25] On January 16, 2020, the parties were asked to make written submissions on the applicable standard of review in light of the Vavilov decision. In essence, neither party changed their submissions as to the applicable standards of review in this case but provided the Court with helpful submissions as to how a reasonableness review must be conducted following the Vavilov decision.
[26] But for the issue of procedural fairness, I agree with both parties that the standard of reasonableness should be applied to my review of all the issues at bar as there is nothing to rebut the presumption that the standard of reasonableness applies.
[27] Some courts have held that the standard of review for an allegation of procedural unfairness is “correctness” (Mission Institution v Khela, 2014 SCC 24 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 59 and 61 [Khosa]). The Supreme Court of Canada’s decision in Vavilov does not address the standard of review applicable to issues of procedural fairness (Vavilov, at para 23). However, a more doctrinally sound approach is that no standard of review at all is applicable to the question of procedural fairness. The Supreme Court of Canada in Moreau-Bérubé v New Brunswick (Judicial Council), 2002 SCC 11 stated that the issue of procedural fairness:
requires no assessment of the appropriate standard of judicial review. Evaluating whether procedural fairness, or the duty of fairness, has been adhered to by a tribunal requires an assessment of the procedures and safeguards required in a particular situation (Moreau-Bérubé, para 74).
[28] With regard to whether the RAD applied the correct legal test when assessing forward-looking risk, courts in the past have often found that the standard of correctness applies to questions concerning whether a decision-maker applied the correct legal test. See, for example, Musabyimana v Canada (Public Safety and Emergency Preparedness), 2018 FC 50 at para 22. Following the Supreme Court of Canada’s decision in Vavilov, a decision-maker’s application of a legal test does not fall into any of the listed exceptions to the presumption of reasonableness, baring a constitutional dimension to the legal question, or a generality or “central importance to the legal system as a whole.” However, clear language in a governing statutory scheme and a significant body of jurisprudence establishing a certain applicable legal test will impose strict constraints on a decision-maker’s discretion, and a departure from such would generally be considered unreasonable in the absence of explicit persuasive reasons for this departure. See Vavilov, at paras 105-114, 129-132, notably para 111:
[111] It is evident that both statutory and common law will impose constraints on how and what an administrative decision maker can lawfully decide: see Dunsmuir, at paras. 47 and 74. For example, an administrative decision maker interpreting the scope of its regulation-making authority in order to exercise that authority cannot adopt an interpretation that is inconsistent with applicable common law principles regarding the nature of statutory powers: see Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810, at paras. 45-48. Neither can a body instructed by legislation to determine what tax rate is applicable in accordance with an existing tax system ignore that system and base its determination on a “fictitious” system it has arbitrarily created: Montréal (City), at para. 40. Where a relationship is governed by private law, it would be unreasonable for a decision maker to ignore that law in adjudicating parties’ rights within that relationship: Dunsmuir, at para. 74. Similarly, where the governing statute specifies a standard that is well known in law and in the jurisprudence, a reasonable decision will generally be one that is consistent with the established understanding of that standard: see, e.g., the discussion of “reasonable grounds to suspect” in Canada (Minister of Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56, [2015] 2 F.C.R. 1006, at paras. 93-98.
[29] As for this Court’s review of the RAD’s assessment of the risk of persecution or harm faced by the Applicant, the application of the standard of reasonableness to this issue is also consistent with the existing jurisprudence prior to the Supreme Court of Canada’s decision in Vavilov. See Iraqi v Canada (Citizenship and Immigration), 2019 FC 1049 at para 15.
[30] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with whether it “bears the hallmarks of reasonableness—justification, transparency and intelligibility—and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para 99). Reasonableness is a single standard of review that varies and “takes its colour from the context” (Vavilov, at para 89 citing Khosa, at para 59). These contextual constraints “dictate the limits and contours of the space in which the decision maker may act and the types of solutions it may adopt” (Vavilov, at para 90). Put in another way, the Court should intervene only when “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency” (Vavilov, at para 100). The Supreme Court of Canada lists two types of fundamental flaws that make a decision unreasonable: (1) a failure of rationality internal to the decision-maker’s reasoning process; and (2) untenability “in light of the relevant factual and legal constraints that bear on it” (Vavilov, at para 101).
VI. STATUTORY PROVISIONS
[31] The following statutory provisions of the IRPA are relevant to this application for judicial review:
Convention refugee
Définition de réfugié
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,
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 :
(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
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 ;
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
Person in need of protection
Personne à protéger
97 (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
97 (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture ;
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
VII. ARGUMENTS
A. Applicant
[32] The Applicant argues that the RAD erred by: (1) breaching his right to procedural fairness in various ways without providing him an opportunity to respond; (2) assessing his future risk of persecution in Sri Lanka according to a balance of probabilities test as opposed to a mere possibility test; and (3) unreasonably assessing his risk of persecution and harm in Sri Lanka. For these reasons, the Applicant asks this Court to grant this application for judicial review.
(1) Breach of procedural fairness
[33] The Applicant submits that the RAD breached his right to procedural fairness by making new credibility findings regarding facts already accepted by the RPD without providing the Applicant with notice or an opportunity to respond.
[34] First, the Applicant argues that the RAD breached his right to procedural fairness in making a negative inference regarding his ability to obtain a passport and to leave Sri Lanka without incident. The Applicant states that the RPD did not make such a finding and implicitly covered this point.
[35] Second, the Applicant submits that the RAD breached his right to procedural fairness by making a negative inference regarding his failure to make an asylum claim in the USA. The RPD accepted the facts in this case and grounded its decision in the change of circumstances. The Applicant states that courts have held that a breach of procedural fairness occurs when a new issue is raised without providing notice to an applicant. See Ching v Canada (Citizenship and Immigration), 2015 FC 725 at paras 65-76 [Ching].
[36] Third, the Applicant argues that the RAD breached his right to procedural fairness by finding that he submitted insufficient evidence to demonstrate a continued risk of persecution from Mr. Silva and Mr. Kularathne. The Applicant notes that the RPD did not make such a finding and, consequently, the RAD could not reassess this evidence, Perampalam v Canada (Citizenship and Immigration), 2018 FC 909 at para 45.
(2) Application of the wrong legal test for assessing forward-looking risk
[37] The Applicant says that the RAD erred in law by using multiple standards to assess the Applicant’s forward-looking risk of persecution. The RAD erred many times by assessing the risk of future persecution on a “balance of probabilities” rather than on a “mere possibility.” The Applicant states that this Court found this to be an error in Sivagnanasundarampillai v Canada (Citizenship and Immigration), 2018 FC 1109 at paras 12-14 [Sivagnanasundarampillai].
(3) Assessment of the Applicant’s risk of persecution or harm
[38] The Applicant submits that the RAD unreasonably assessed the risk of persecution and harm he faces should he return to Sri Lanka. Specifically, the Applicant submits that the Decision is unreasonable because the RAD: (1) erroneously assessed his risk as a returning failed refugee claimant; (2) failed to consider relevant evidence regarding the potential to label him an LTTE supporter; and (3) erroneously assessed his risk of persecution or harm from Mr. Silva and Mr. Kularathne.
[39] First, the Applicant argues that the RAD unreasonably found that he did not face a risk of persecution as a failed refugee claimant returning to Sri Lanka because “there is no evidence on the record that the Sri Lankan authorities would be aware that the [Applicant] had made a refugee claim in Canada” (para 45). The Applicant states that it is unreasonable to assume that a claimant can conceal the fact that they made a refugee claim and this Court has found that it is always an error to deny protection on the ground that a claimant can avoid persecution if they lie or provide a cover story. The Applicant cites Donboli v Canada (Minister of Citizenship and Immigration), 2003 FC 883 at para 8 as well as Vilvarajah v Canada (Citizenship and Immigration), 2018 FC 349 at paras 15-17 [Vilvarajah].
[40] Second, the Applicant argues that the RAD failed to consider the fact that: (1) Mr. Eknaligoda’s wife has also been accused of being an LTTE supporter; and (2) the suspects charged with the disappearance of Mr. Eknaligoda were all released without charges.
[41] Third, the Applicant argues that it was unreasonable for the RAD to conclude that he did not face a risk of harm or persecution from Mr. Silva and Mr. Kularathne. The Applicant says it is unreasonable to expect that his persecutors would engage in a futile search for the Applicant when he has been out of the country for several years.
B. Respondent
[42] The Respondent argues that the RAD: (1) did not raise any new issues or breach the Applicant’s right to procedural fairness; (2) properly assessed whether the Applicant faced more than a mere possibility of risk of harm or persecution; and (3) reasonably assessed the evidence submitted concerning the Applicant’s risk of harm or persecution in Sri Lanka. For these reasons, the Respondent submits that this judicial review should be dismissed.
(1) Breach of procedural fairness
[43] The Respondent submits that the RAD did not violate the Applicant’s right to procedural fairness as it did not consider any new issues but, instead, reviewed the evidence raised by the Applicant afresh as it is obliged to do. The Respondent notes that the RAD and the RPD can come to a different conclusion when assessing the evidence and that this does not amount to a breach of the Applicant’s right to procedural fairness. See Ibrahim v Canada (Citizenship and Immigration), 2016 FC 380 at para 30 and Bakare v Canada (Citizenship and Immigration), 2017 FC 267 at paras 18-19.
[44] Specifically, the Respondent states that it was open to the RAD to consider the evidence concerning the Applicant’s ability to obtain a passport and leave Sri Lanka without incident, as well as the evidence concerning the risk of harm or persecution from Mr. Silva and Mr. Kularathne. Moreover, the Respondent says that the RAD did not make a finding concerning the Applicant’s failure to make a refugee claim in the USA.
(2) Application of the legal test for assessing forward-looking risk
[45] The Respondent submits that the RAD applied the correct legal test in this case and assessed whether the Applicant faced more than a mere possibility of a risk of persecution. The Respondent notes that the RAD did not assess the Applicant’s risk of persecution according to the balance of probabilities, but rather applied that test to assess whether the Applicant had established the facts upon which his claims are grounded. The Respondent notes that this is consistent with this Court’s decisions in Pararajasingham v Canada (Citizenship and Immigration), 2012 FC 1416 at para 46 and Nageem v Canada (Citizenship and Immigration), 2012 FC 867 at paras 24-25.
(3) Assessment of the Applicant’s risk of persecution or harm
[46] The Respondent submits that the RAD’s assessment of the Applicant’s risk of persecution or harm was reasonable as the RAD: (1) assessed his risk of returning as a failed refugee claimant according to his particular circumstances and profile; (2) considered all relevant evidence in making its Decision; and (3) assessed the risk of harm or persecution from Mr. Silva and Mr. Kularathne according to the evidence submitted.
[47] First, the Respondent argues that the RAD considered the Applicant’s particular circumstances and profile as a whole in finding that he did not face a risk of persecution or harm should he return to Sri Lanka as a failed refugee claimant. The RAD noted that the Applicant would be returning with his own passport, that his former departure from Sri Lanka was without issue, and that there was an absence of a reasonable perception of ties to the LTTE. There was also a lack of evidence that the Applicant would appear on any immigration, intelligence or criminal database, and an absence of evidence that he had criticized the Sri Lankan government while outside the country. The Respondent also points out that the RAD did not state, imply or assume that the Applicant would be required to conceal the fact that he made a refugee claim, but simply stated that there is no evidence that the Sri Lanka government would be aware of this fact.
[48] Second, the Respondent notes that the RAD considered the evidence submitted as a whole and grounded its Decision on several factors. Although the Respondent notes that the RAD did not mention the fact that the suspects in Mr. Eknaligoda’s disappearance had been released, the failure to explicitly list all of the evidence submitted is not a material error.
[49] Third, the Respondent holds that the RAD’s overall determination concerning the risk posed by Mr. Silva and Mr. Kularathne was based on the evidence and was reasonably open to the RAD to make.
VIII. ANALYSIS
[50] In written submissions, the Applicant raised a plethora of issues for review. However, at the hearing of this matter in Toronto on December 3, 2019, the Applicant withdrew all issues except the following three: (A) the RAD’s application of the legal test for assessing forward-looking risk of persecution; (B) the procedural fairness issues with the RAD’s analysis of his failure to make a claim in the USA; and (C) the RAD’s assessment of the Applicant’s risk as a failed refugee claimant.
A. Legal test for assessing forward-looking risk
[51] The Applicant says that the RAD erred in law by assessing forward-looking risk according to the balance of probabilities. He says this is an error because the correct test is “more than a mere possibility.”
[52] The Respondent says that the RAD correctly applied the balance of probabilities test to the facts upon which the Applicant relied, and the “more than a mere possibility” test when assessing forward-looking risk of persecution based upon those facts.
[53] Justice O’Reilly summarized the ground rules concerning the standard of proof in Alam v Canada (Minister of Citizenship and Immigration), 2005 FC 4 at paras 8-11:
[8] The lesson to be taken from Adjei is that the applicable standard of proof combines both the usual civil standard and a special threshold unique to the refugee protection context. Obviously, claimants must prove the facts on which they rely, and the civil standard of proof is the appropriate means by which to measure the evidence supporting their factual contentions. Similarly, claimants must ultimately persuade the Board that they are at risk of persecution. This again connotes a civil standard of proof. However, since claimants need only demonstrate a risk of persecution, it is inappropriate to require them to prove that persecution is probable. Accordingly, they must merely prove that there is a “reasonable chance,” “more than a mere possibility” or “good grounds for believing” that they will face persecution.
[9] The case law referred to above shows that where the Board has articulated the gist of the appropriate standard of proof (i.e. the combination of the civil standard with the concept of a “reasonable chance”), this Court has not intervened. On the other hand, where it appears that the Board has elevated the standard of proof, the Court has gone on to consider whether a new hearing is required. Further, if the Court cannot determine what standard of proof was applied, a new hearing may be necessary: Begollari v. Canada (Minister of Citizenship and Immigration), 2004 FC 1340, [2004] F.C.J. 1613 (T.D.) (QL).
[10] Where the Board imposes a burden of proof that is too high, there is a chance that an unsuccessful claimant might otherwise have succeeded. However, in some cases, an error would be purely academic. This would be the case in situations where the claimant’s evidence is so weak that it could not possibly meet even the “reasonable chance” standard: Brovina, above.
[11] Accordingly, the Court’s role on judicial review in these circumstances is to determine whether the Board applied the appropriate standard of proof. If not, the Court must then decide whether the error requires a new hearing.
[Emphasis in original.]
[54] In Sivagnanasundarampillai, at paras 12-13, Justice Diner added the following gloss for situations where the standard of proof applied is unclear:
[12] The Applicant argues that the RPD applied an incorrect test, elevating the requirement such that he prove persecution, on a balance of probabilities, rather than on the correct standard of more than a mere possibility. The Applicant further alleges that the RPD also misstated the test when it held “the claimant is unlikely to face any additional scrutiny upon his return to Sri Lanka as a result of his activities while in Sri Lanka and subsequent to his departure from Sri Lanka” (Decision at para 22, emphasis added). In doing so, the Applicant submits that the entire section 96 refugee determination analysis was tainted by an error of law, because the proper test to be applied is whether there is a reasonable chance, or more than a mere possibility, the Applicant would be perceived as a supporter of the LTTE.
[13] The Respondent replies that the RPD’s assessment of the Applicant’s section 96 claim, when considered as a whole, was reasonable, despite the awkward wording. In other places of the Decision, the Board properly articulated the test, and then applied the evidence to that test reasonably, i.e. with the standard of proof on a balance of probabilities, and assessed this evidence against the correct legal test of a reasonable chance, or more than a mere possibility, of prospective risk of persecution (Nageem v Canada (Citizenship and Immigration), 2012 FC 867 [Nageem] at paras 24–25).
[55] When I review the examples in the Decision relied upon by the Applicant in this application, it is my view that the RAD does assess the Applicant’s risk of forward-looking persecution according to the more than a mere possibility test.
[56] For example, in para 37 of the Decision, the RAD says:
As noted earlier, the RAD has found that the Appellant has not credibly established that his alleged agents of persecution, Sudath Silva and Chaminda Kularathne, continued to work for the government or have any interest in harming him at the present time. Additionally, the RAD agrees with the RPD that the Appellant would not be considered a supporter of the LTTE because of his brief meeting with the journalist Prageeth Eknaligoda as this individual has now been exonerated. The RAD finds, on a balance probabilities, that this brief meeting would not be used against the Appellant as proof that he had an association with the LTTE given the particular circumstances.
[57] It seems to me that when the RAD says “would not be considered” and “would not be used against him,” the RAD is saying, in effect, that the Applicant has not established, on a balance of probabilities, sufficient facts to support his allegations of forward-looking risk. In particular, the RAD is saying that the facts do not support his claim that he would be considered an LTTE supporter or that his meeting with Mr. Eknaligoda would be used against him as proof that he is an LTTE supporter. If there are no facts to support his claim that he would be considered an LTTE supporter, there is inevitably no possibility that he would be treated as an LTTE supporter on return or persecuted as such. The Applicant did not establish the facts upon which he relied to establish more than a mere possibility of persecution.
[58] In para 38 of the Decision, the RAD makes the following findings:
The RAD finds that the Appellant’s allegations that he was considered an LTTE supporter while in Sri Lanka have not been established on a balance of probabilities. The RAD further finds that should he return to Sri Lanka, he would not be considered to be an LTTE supporter by the authorities and he would not be investigated or detained for this reason given his personal circumstances. The RAD finds that there is not a serious possibility that the Appellant would be arrested and tortured upon return to Sri Lanka because of perceived links to the LTTE.
[59] Once again, when the RAD uses “would not be,” it is saying that, on a balance of probabilities, the Applicant has not proved that, upon return, the authorities would regard him as an LTTE supporter, or that he would be investigated or detained for this reason. Whether the authorities would regard the Applicant as an LTTE supporter is a fact that needs to be established on a balance of probabilities before the RAD can determine whether there is more than a mere possibility that he will be persecuted for being an LTTE supporter.
[60] Paragraph 44 also makes it clear that the RAD is looking for facts in order to determine whether there is a serious possibility that the Applicant will be persecuted for being an LTTE supporter:
The RAD notes that the Appellant has his own permanent Sri Lankan passport which was issued while he was out of the country, and that he was able to leave Sri Lanka without any problems. The RAD has already found that he has not established, on a balance of probabilities, that he had been or would be associated with the LTTE by Sri Lankan authorities. There is no evidence on the record to indicate that his name would appear on immigration, intelligence or criminal databases given that he was able to leave the country without any problems at the height of the time that he believed he was considered an LTTE supporter or associate. There is no evidence in the record that the Appellant has had any association with LTTE diaspora organizations while outside of Sri Lanka, or that he has written about or criticized the Sri Lankan government in any way while outside of the country. The RAD finds that while remaining outside of Sri Lanka for along period of time may subject the Appellant to higher screening at the airport in the form of questioning about his activities abroad, this in and of itself does not amount to persecution.
[61] The Applicant says that in para 49, when the RAD uses the “balance of probabilities” test, it should have instead used the “more than a mere possibility” test. Paragraph 49 of the Decision reads as follows:
The RAD has reviewed the record and finds that there is insufficient information in the documentary evidence that the Appellant would be banned from practising his profession as a journalist throughout Sri Lanka. The RAD notes that he returned to his job in the Port Authority in 2009 and remained working there until 2011. There is no evidence in th