Canada (Citizenship and Immigration) v. A049

Canada (Citizenship and Immigration) v. A049
Court (s) Database
Federal Court Decisions
Date
2014-04-09
Neutral citation
2014 FC 344
File numbers
IMM-8452-12
Decision Content
Date: 20140409
Docket:
IMM-8452-12
Citation: 2014 FC 344
Ottawa, Ontario, April 9, 2014
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
A049
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] This is an application by the Minister of Citizenship and Immigration [Applicant] for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] of a decision of the Refugee Protection Division of the Immigration and Refugee Board [RPD or Board] dated August 3, 2012 [Decision]. The Board accepted the Respondent’s claim for refugee protection, having found that he is a Convention refugee sur place under section 96 of the Act.
[2] The Respondent arrived in Canada on October 17, 2009 aboard the MV Ocean Lady. He made a claim for refugee protection at the port of entry. On March 2, 2010, the Minister of Public Safety and Emergency Preparedness [Minister] filed a Notice of Intention to Intervene in the Respondent’s refugee protection claim, and the Minister’s counsel appeared before the Board to examine the Respondent and make submissions.
[3] The Board found that the Respondent has a well-founded fear of persecution if returned to Sri Lanka by reason of his nationality and his membership in a particular social group comprised of young Tamil males who would be suspected of links to the Liberation Tigers of Tamil Eelam [LTTE] because of their travel to Canada on the MV Ocean Lady.
[4] The Applicant requests that the Decision be set aside and the matter be remitted back to another member of the Board for re-determination.
BACKGROUND
[5] The Respondent is a 31-year-old male from the Jaffna region in Sri Lanka. In 1998, he moved to Colombo, allegedly due to problems he faced from the LTTE in the Jaffna region. He has a wife and daughter who remain in Sri Lanka.
[6] In Colombo, the Respondent was self-employed as a van driver. He owned one van, which he purchased in 2004 with funds provided by his father, and sometimes employed other drivers on a temporary, casual basis. In his Personal Information Form [PIF], the Respondent indicated he generated income by driving passengers around Colombo and its suburbs. In his port of entry interview and in his testimony before the Board, the Respondent stated that he also drove passengers to Jaffna and other areas.
[7] The Respondent alleges that he had problems in Colombo with local police and with the Criminal Investigations Department [CID]. He says the police often stopped him, interrogated him and accused him of being a Tamil Tiger. These events occurred both within Colombo and at army checkpoints on the highway to Jaffna. The Respondent says the LTTE also stopped him at checkpoints along the highway. The LTTE would require a “tax” of 12,000 rupees for the driver and 4,000 rupees from each passenger before they would let him pass.
[8] Before the RPD, the Respondent claimed that in addition to the road stops he was detained by the police overnight in 2002 and for seven days in 2003, and questioned about his connections to the LTTE. There is inconsistent evidence regarding whether he was ever assaulted during these detentions; the Applicant’s PIF states that he was, but he stated in his point of entry interview and his hearing testimony that he had never been assaulted by the police.
[9] The Respondent said in his PIF that in mid-2007, the intelligence authorities started arresting many young Tamil men, accusing them of being LTTE supporters, and that “white vans” were abducting many young Tamil males in Colombo at that time. At his hearing, he said that two of his friends were abducted and murdered in separate incidents in October 2007. He says the abductions were committed by people driving white vans, but he could not identify them. After this, the police visited the house where he lived and questioned him. The owner of the house was arrested.
[10] The Respondent says he feared the police and government troops in Sri Lanka and made a decision to leave. He fled from Colombo to Thailand on November 26, 2007, and remained there until July 17, 2009, when he traveled to Indonesia. He departed Indonesia on the MV Ocean Lady and arrived in Canada on October 17, 2009. He made all of these arrangements with the assistance of an agent.
DECISION UNDER REVIEW
[11] The RPD allowed the Respondent's claim for protection under section 96 of the Act, finding that he is a sur place Convention refugee. The Board found that the Respondent “has a well-founded fear of persecution for a Convention refugee ground in Sri Lanka by reason of his nationality and membership in a particular social group of young Tamil males who would be suspected of links to the LTTE because of their travel to Canada on the Ocean Lady” (Decision at para 6).
[12] The Board raised concerns about the Respondent’s credibility with respect to his allegations of past persecution. In particular, the Respondent stated in his PIF that he was assaulted and interrogated by the intelligence officials about the various drivers driving his van, and that the police would take him to a police station and assault and interrogate him about Tamils living in Colombo. However, before the Tribunal he testified that he was never beaten by the police. The Respondent testified that the original PIF had not been properly translated to him. Once it was translated, an amended PIF was submitted to the Board. However, the references to the assaults remained the same.
[13] The Respondent also testified at the hearing that the CID visited his home in Colombo one month before he departed from Sri Lanka, and that this visit was a significant reason why he departed. The RPD questioned him on why he had not included this incident in his PIF, especially since it was a major impetus for him leaving the country. The Respondent replied that he stated in his PIF that he left the country because of problems with the police. The RPD noted PIF amendments that referred to problems with the police and the CID, and accepted the Applicant’s explanation as reasonable.
[14] The Respondent also indicated in his PIF that his business involved driving a van in Colombo and its suburbs, but he testified that he also drove to Jaffna and other areas. The Board held that this was a material omission that impacted his credibility. The Board found the Respondent’s explanations with respect to this inconsistency to be “inadequate.” Nonetheless, the Board concluded that these inconsistencies were “not sufficient to totally impugn his credibility.” Further, the Minister’s counsel intervening in the proceedings did not raise any issues with respect to the Respondent’s credibility.
[15] The RPD found the Applicant’s evidence regarding his journey on the MV Ocean Lady and his allegations regarding what could happen to him on his return to Sri Lanka to be credible, and since the refugee definition is forward‑looking, placed greater weight on these findings than on the negative inferences drawn from the inconsistencies in his evidence regarding his past experiences. The RPD found the Respondent to be “generally a credible and trustworthy witness.”
[16] The RPD found that there was no evidence to suggest that, prior to his departure from Sri Lanka, the Respondent was a member of, or would have been considered to have connections with, the LTTE. However, the Respondent’s profile changed when he boarded the MV Ocean Lady, with the result that the Respondent was deemed to be a Convention refugee sur place.
[17] The ship’s arrival in Canada, as well as its LTTE connections, was widely publicized internationally. The Board cited expert evidence and an internal Canadian government report stating that a number of individuals on the MV Ocean Lady were suspected LTTE members. It also noted media coverage indicating that the RCMP communicated with the Sri Lankan government regarding criminal background checks for passengers.
[18] Although there was some evidence regarding improvements in country conditions for Tamils since the end of the war in May 2009, the RPD noted that the 2010 UNHCR Guidelines recommended ongoing protection for persons suspected of having links with the LTTE. The Board highlighted evidence of the ongoing prevalence of detention, torture and disappearances in Sri Lanka for those suspected of connections with the LTTE, and of the impunity of state officials. In particular, failed refugee claimants returning to the country are identified at the border by their temporary travel documents, and are subject to prolonged detention and special questioning. The Board noted that contrary evidence, suggesting that failed asylum claimants of Tamil ethnicity returning to Sri Lanka are not singled out for greater questioning or detention, was based upon potentially biased sources such as Sri Lankan government officials. As such, the RPD assigned greater weight to information coming from the U.S. Department of State, Amnesty International and Human Rights Watch, among others, whom the RPD considered to be internationally recognized as definitive authorities.
[19] The Board held that the Respondent would easily be identified by Sri Lankan authorities as an MV Ocean Lady passenger with potential LTTE connections should he be returned to Sri Lanka, and found that the Sri Lankan government has a “clear interest in tracking down and often persecuting persons with LTTE links.” The Board concluded that there was more than a mere possibility that the Respondent would, upon return to Sri Lanka, be subject to detention, interrogation and potential beatings and torture that rise to the level of persecution as a result of his nationality and inclusion in a particular social group.
[20] The Board also held that state protection would not be forthcoming since the state is the agent of persecution in this case. The RPD found that despite well documented abuses such as torture, disappearances and killings, there are no civilian or military courts which have convicted any solider or police officer involved. It found that there is impunity for those involved in these abuses, and that returning males suspected of links to the Tamil Tigers will therefore be subject to the kinds of atrocities the Respondent fears at the hands of the police and the military.
[21] The Board considered whether an Internal Flight Alternative [IFA] was available and concluded that none existed. The Respondent was at risk of persecution throughout Sri Lanka and could not avail himself of state protection in any area of the country.
[22] Based on this analysis, the RPD found that the Respondent is a Convention refugee under section 96 of the Act. The Board did not consider the Respondent’s claim under section 97 of the Act.
ISSUES
[23] The issue in this application is whether the Board committed a reviewable error in finding that the claimant is a Convention refugee sur place on the basis of nationality and being a member of a particular social group.
STANDARD OF REVIEW
[24] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[25] In the present application, the parties are in agreement that the issues should be decided on the reasonableness standard. I would note that there is disagreement in the jurisprudence regarding the standard of review that applies regarding the legal meaning of the term “particular social group” in section 96 of the Act. The contending positions are set out by Justice Gleason in Canada (Minister of Citizenship and Immigration) v A068, 2013 FC 1119 at paras 12-17 [A068]. However, given my findings below, it is not necessary to go into this issue. The issues that arise here are mixed questions of fact and law that are reviewable on a standard of reasonableness. (Dunsmuir, above, at para 47)
[26] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at para 47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
STATUTORY PROVISIONS
[27] The following provisions of the Act are applicable in these proceedings:
Convention refugee
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,
(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
(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.
Définition de « réfugié »
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) 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) 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.
ARGUMENT
Applicant
[28] The Applicant argues that the RPD’s Decision is neither correct nor reasonable, and should be quashed regardless of the applicable standard of review. The RPD’s finding that the Respondent’s fear of persecution has a nexus to a Convention ground of refugee protection based on membership in a particular social group or nationality is in error, the Applicant says, and the Court should not read other potential grounds into the RPD’s reasons. In particular, an analysis based on “mixed motives” or imputed political opinion is inappropriate because the RPD made no such findings.
[29] Furthermore, the Applicant argues, the Respondent’s claim lacks an objective basis. The evidence that was before the RPD did not support the claim that merely being in the proximity of alleged LTTE members would cause the Respondent to be perceived as an LTTE member.
[30] The RPD also failed to reconcile the Respondent’s personal circumstances with its finding that he is a refugee, the Applicant argues. For example, he lived in Colombo for 9 years and travelled regularly to Jaffna without any problems.
[31] Finally, the Applicant argues that the RPD’s reasons are inadequate.
No Nexus to a Convention Ground
[32] For a refugee claim to be accepted, a claimant’s fear of persecution must have a nexus to one of the five grounds listed in the Convention refugee definition: race, religion, nationality, membership in a particular social group or political opinion: Canada (Attorney General) v Ward, [1993] 2 SCR 689 at para 53 et seq. [Ward]. The Applicant argues that no nexus to any of these grounds is established in this case.
i. MV Ocean Lady Passengers are not a Particular Social Group
[33] The Applicant says that an association formed by voluntarily choosing to set sail for Canada on an illegal human smuggling ship does not meet the test for a particular social group. Choosing to travel on a particular ship does not engage the defence of human rights or anti-discrimination, and is not an immutable characteristic or one that is fundamental to human dignity, and therefore does not make one a member of a particular social group within the meaning of section 96 of the Act: Canada (Minister of Citizenship and Immigration) v B380, 2012 FC 1334 at paras 16-27 [B380]; Canada (Minister of Citizenship and Immigration) v B472, 2013 FC 151 at paras 26-28 [B472]; Canada (Minister of Citizenship and Immigration) v B451, 2013 FC 441 at paras 27-37; Canada (Minister of Citizenship and Immigration) v A011, 2013 FC 580 at para 40 [A011]; Canada (Minister of Citizenship and Immigration) v B171, B169, B170, 2013 FC 741 at paras 10-13 [B171]; see also B027 v Canada (Minister of Citizenship and Immigration), 2013 FC 485 at paras 2, 12.
[34] According to Ward, above, at para 70, a particular social group within the meaning of section 96 of the Act is either: (i) a group defined by an innate and unchangeable characteristic; (ii) a group whose members voluntarily associate for reasons fundamental to their human dignity; or (iii) a group defined by a former voluntary association that is now unalterable due to its historical permanence. The Applicant says that none of these categories fit the current circumstance. Travel onboard the MV Ocean Lady is not an immutable characteristic such as gender, linguistic background or sexual orientation, it was not fundamental to the Respondent’s human dignity, and it has nothing to do with the defence of human rights or anti-discrimination, which is a requirement for the application of the third category.
[35] The Supreme Court in Ward, above, expressly rejected the expansive understanding of a particular social group employed by the RPD in this case and found that a paramount consideration for determining whether a person is a member of a particular social group is whether a case raises “the underlying themes of the defence of human rights and anti‑discrimination that form the basis for the international refugee protection initiative”: Ward, above, at para 70; Zefi v Canada (Minister of Citizenship and Immigration), 2003 FCT 636 at paras 31-41 (FCTD) [Zefi]. Voluntarily choosing to set sail for Canada on an illegal human smuggling ship does not engage the defence of human rights or anti-discrimination, the Applicant argues. This is particularly so where, as here, there is no evidence of a risk of persecution prior to departure. The RPD found that during the time the Respondent lived in Sri Lanka, and when he left in November 2007, there was no evidence to “even suggest” that he would have been considered to have connections with the LTTE. Nor is such a voluntary association fundamental to human dignity. The choice of method of transportation is simply what someone does rather than what someone is: Zefi, above, at para 41.
[36] In the Applicant’s view, a finding that those who travel aboard an illegal human smuggling operation constitute a particular social group trivializes the concept. The circumstances of this case are analogous to Chekhoskiy v Canada (Minister of Citizenship and Immigration), 2009 FC 970, where Justice de Montigny held (at para 23) that a building contractors’ group was not a particular social group, and that to find otherwise would be incompatible with the anti-discrimination purpose of the Convention.
[37] The Applicant argues that, contrary to the Applicant’s assertions, the Canadian government did not label the MV Ocean Lady an “LTTE ship,” and did not treat its passengers as a particular social group by detaining them or otherwise. The mere fact that an undocumented arrival of many passengers had to be investigated to establish identity, admissibility, and potential public health risks does not provide indicia of a particular social group; similar investigations would be required on any undocumented mass arrival.
[38] In addition, a claimant who fears persecution merely because he or she is believed to have information about a criminal organization does not have a nexus to a Convention ground, and the RPD’s finding of a nexus based on the Applicant “having information about LTTE members on board the Ocean Lady” was unreasonable: Levano v Canada (Minister of Citizenship and Immigration), 2000, 182 FTR 153 at para 8 (FCTD); Ivakhnenko v Canada (Solicitor General), 2004 FC 1249 at paras 65-67 [Ivakhnenko]; Yoli v Canada (Minister of Citizenship and Immigration), 2002 FCT 1329 at para 27 (FCTD).
ii. No Nexus Based on Nationality
[39] The Applicant argues that the finding of a nexus based on nationality is unfounded, because the documentary evidence does not establish an individualized risk. Simply identifying the Respondent as a Tamil and disjointedly referring to country condition evidence showing that the human rights situation in a country could be problematic does not establish a risk to a given individual: Canada (Minister of Public Safety and Emergency Preparedness) v Baraniroobasingam, 2010 FC 92 at para 6; Canada (Minister of Citizenship and Immigration) v Fouodji, 2005 FC 1327 at para 20.
iii. The Court Should Not Read In Grounds Not Considered by the RPD
[40] The Applicant notes that this Court has grappled with the issue of whether or not to “read in” a “mixed motives” analysis in other cases involving passengers on the MV Sun Sea and MV Ocean Lady. The Applicant argues that the Court should not read in a Convention ground that has not been analyzed by the decision-maker.
[41] The Applicant notes several cases in which the Minister’s applications for judicial review of successful refugee claims by MV Sun Sea or MV Ocean Lady passengers have been dismissed, but argues that each case is either distinguishable or has been superseded by other cases. In Canada (Minister of Citizenship and Immigration) v A032, 2013 FC 322 at para 21 [A032], Justice Blanchard found that there was sufficient discussion by the RPD to find a nexus based on political opinion, and a nexus to race could be inferred from the reasons. The Applicant says this case is distinguishable on the facts, because A032 had been arrested and questioned multiple times in Sri Lanka, and charged in court on suspicion of LTTE involvement. There was also an explicit finding that he spent part or all of the voyage in the company of an individual for whom there was an INTERPOL Red Notice. There are no similar findings in this case. In Canada (Minister of Citizenship and Immigration) v B420, 2013 FC 321 [B420], Justice Blanchard found that a nexus with ethnicity and political opinion was implicit in the RPD’s decision. The Applicant says B420 is distinguishable because the RPD in that case made a cumulative ethnicity and imputed political opinion nexus finding, whereas no such finding was made in the present case. In Canada (Minister of Citizenship and Immigration) v B377, 2013 FC 320 [B377], Justice Blanchard again applied the doctrine of mixed motives, finding that the respondent’s fear of persecution was partially based on his Tamil ethnicity. He found that a mixed motives analysis hinging on race and ethnicity was clear and explicit in the RPD’s reasons. In Canada (Minister of Citizenship and Immigration v B399, 2013 FC 260 [B399], Justice O’Reilly found that there was a basis in the RPD’s decision to suggest that political opinion was an alternative nexus ground. The Applicant says this was based on B399’s credible evidence about his experiences in Sri Lanka before he left and the evidence about the treatment of Tamil returnees.
[42] The Applicant says that the hearing dates in the above-noted matters suggest that they were argued and taken under reserve before Justice Harrington’s decisions in B472, above, and Canada (Minister of Citizenship and Immigration) v B323, 2013 FC 190 [B323] were issued, and before Justice Mosley’s decision in B171, above. In B472 and B323, Justice Harrington found that those who travelled to Canada on the MV Sun Sea did not form a particular social group, following Chief Justice Crampton’s analysis in B380, above, and refused to “rewrite the reasons” to support a finding based on a combination of section 96 risks. Similarly, in B171, Justice Mosley refused to read a mixed motives finding into the RPD’s decision. He reviewed only the express finding of a nexus based on membership in a particular social group, and found it to be unreasonable.
[43] The Applicant argues that the Court should follow the latter cases here. Upholding the Decision based on a nexus of imputed political opinion or mixed motives would not be appropriate, because the RPD made no such finding and only the explicit findings of the RPD can be reviewed: B171, above, at para 10; Canada (Minister of Citizenship and Immigration) v B459, 2013 FC 740 at para 7 (per Mosley J) [B459]; A011, above, at para 27. While courts may elaborate upon the reasons, they should not fashion reasons that provide a different basis for the decision than the one given by the Board: Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61 at para 54.
[44] Furthermore, the Applicant says, the RPD’s reasons in this case do not support a mixed motives analysis. The only reference by the RPD that could be related to the Respondent’s perceived political opinion is the finding that he could face persecution for potentially having information about the LTTE, and “having information is not political opinion”: A011, above, at para 42; Ivakhnenko, above, at paras 65-67; Yoli, above, at para 27. Any mixed motives analysis related to ethnicity or race must also fail, the Applicant argues, because there is no support for a finding that the Respondent is at risk of persecution due to his Tamil background. In fact, the RPD expressly found that but for his voyage on the MV Ocean Lady, there was no evidence to suggest that the Applicant’s profile as a young Tamil male from Sri Lanka created any risk of persecution: Ganeshan v Canada (Minister of Citizenship and Immigration), 2013 FC 841 at para 35; B198 v Canada (Minister of Citizenship and Immigration), 2013 FC 1106 at para 57.
[45] The Applicant also notes that in PM v Canada (Minister of Citizenship and Immigration), 2013 FC 77 [PM] and SK v Canada (Minister of Citizenship and Immigration), 2013 FC 78 [SK], Justice Snider upheld the RPD’s conclusion that the country condition evidence of human rights violations in Sri Lanka and the possible questioning and detention of the claimants upon return was insufficient to establish that the authorities would target these particular claimants for persecution.
Failure to Properly Consider Personal Circumstances
[46] The Applicant also argues that the RPD failed to consider the Respondent’s personal circumstances before finding him to be a refugee, and therefore the Decision is unreasonable because it was not made in accordance with the facts.
[47] Finding that the Respondent was “from Jaffna” was unreasonable given that he moved to Colombo in 1998, and had not lived in Jaffna for over 14 years by the time of departure. The RPD also failed to reconcile its findings with objective evidence that the Respondent has no ties to the LTTE, and with the Respondent’s own evidence in interviews with the Canada Border Services Agency. In these interviews, the Respondent said he does not know or believe that any of the other passengers on the MV Ocean Lady were members of the LTTE, and never discussed the LTTE while on board.
[48] The Respondent’s own experiences do not support a finding that he would be at risk of serious abuse if the Sri Lankan authorities wanted to question him, the Applicant argues. The RPD did not accept his account of past persecution when he lived in Sri Lanka, even while the civil war was ongoing, and failed to explain how he would now be at risk of serious abuse after the situation in Sri Lanka has improved.
Inadequate Reasons
[49] The Applicant says that the RPD’s reasons in this case were inadequate because: the Board made no reference to the test for finding a particular social group; it relied on articles discussing the MV Sun Sea ship even though the Respondent travelled aboard the MV Ocean Lady; and the one newspaper article in evidence suggesting that 26 of the MV Ocean Lady passengers were LTTE members does not support a sweeping generalization that all passengers would be perceived to be LTTE members. The only relevant similarly-situated evidence would have been evidence pertaining to how a mass marine arrival was treated after returning to Sri Lanka, and no such evidence was before the RPD. The Board discounted the only evidence available regarding the treatment of failed Tamil asylum seekers returning from Canada, the Applicant says, and ignored evidence on the treatment of failed Tamil asylum seekers from the United Kingdom. While the standard is not perfection, in the Applicant’s view, the RPD’s reasons are unintelligible.
Lack of an Objective Basis
[50] The Applicant argues that the evidence before the RPD did not show, on a balance of probabilities, that the Respondent’s claim had an objective basis: Ward, above, at para 47; Chan v Canada (Minister of Employment and Immigration), [1995] 3 SCR 593 at paras 119-120, 137 [Chan]. The evidence before the RPD simply does not support a finding that merely being on the same ship as LTTE members means that the Respondent would be perceived as being an LTTE member. Recent country reports on Sri Lanka have rejected this type of sweeping generalization. For example, UNHCR’s revised Eligibility Guidelines, which reflect the improved human rights and security situation following the end of the civil war, removed the previous broad group-based recommendation of protection for all Tamils from the North. Merely being a Tamil associated with a particular region is not sufficient to ground a refugee claim: UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers, July 5, 2010.
[51] While the documentary evidence does discuss problems for perceived LTTE members, this evidence refers to persons who have closer ties than merely being in the general vicinity of alleged LTTE members, the Applicant says. The various reports before the RPD make no mention that Sri Lankan authorities would perceive an individual to be connected to the LTTE simply because they travelled overseas on the same ship as an alleged LTTE member. Rather, the documentary evidence shows that a claimant may be perceived to be associated with the LTTE if they were: 1) a former LTTE child soldier recruit; or 2) an actual former member of the LTTE. The RPD made an unjustified logical leap from its finding that the Sri Lankan government believed the MV Ocean Lady to be owned by the LTTE to its finding that “the claimant would be stopped, detained, interrogated, tortured and possibly disappeared or even killed since he was on a ship suspected of being owned by and having LTTE members on it” (Decision at paras 20, 36). In fact, the evidence before the RPD was that the Sri Lankan government believed there were two kinds of refugees fleeing: those who are fighters or who had collaborated with the LTTE, and those fleeing for economic reasons.
[52] The RPD is forbidden from giving the benefit of the doubt to a claimant regarding the objective basis for their claim where: 1) the claimant lacks credibility; and 2) it runs against generally known facts: Chan, above, at para 142. Here, the Respondent’s claim of past persecution was found to be severely lacking in credibility.
Respondent
[53] The Respondent argues that his claim was properly granted by the RPD after a careful and thorough analysis of the evidence, and the Decision should not be disturbed by the Court. He says the RPD was careful to focus on the Respondent’s sur place claim, and, based on the totality of the evidence, determined that his voyage aboard the MV Ocean Lady, as a young ethnic Tamil male from Jaffna, would invariably lead to suspicions that he is an LTTE member or supporter: see Gonsalves v Canada (Attorney General), 2011 FC 648 at para 29. Numerous credible and objective sources confirm ongoing acts of persecution against persons fitting that profile. The objective documentary evidence consulted and quoted by the RPD does not merely show a problematic human rights situation; it points to specific targeting and grave human rights abuses directed at Tamils suspected of LTTE affiliation.
[54] In the Respondent’s view, the Applicant simply disagrees with the RPD’s determination and is asking this Court to reassess and reweigh the evidence without pointing to any unreasonable findings, which is not the role or function of the Court. The Board is a specialized tribunal and both its overall determination and each of its critical findings were well supported by a clear evidentiary basis: Adjei v Canada (Minister of Employment and Immigration), [1989] 2 FC 680 (FCA) [Adjei]; Salibian v Canada (Minister of Employment and Immigration) (1990), 11 Imm LR (2d) 165 (FCA); Rajudeen v Canada (Minister of Employment and Immigration) (1984), 5 NR 129 (FCA); Ward, above.
[55] The Respondent argues that the RPD’s reasons must be read as a whole, and that a microscopic analysis is unwarranted. Read as a whole, the reasons reflect justification, transparency and intelligibility, and the outcome is defensible on the facts and the law: Khosa, above, at paras 45-46, 59; Dunsmuir, above. The RPD was careful to consult a variety of objective evidence, and carefully applied it to the Respondent’s claim and particular circumstances: Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425.
[56] The Respondent says the RPD was alert and aware of the basis of his refugee claim; namely, his race, imputed political opinion, and membership in a particular social group. The Respondent based his claim on his ethnicity or race, as a Tamil, as well as his gender, age and residence as a younger male from Jaffna. These same characteristics form the basis of his membership in a particular social group.
[57] The Respondent argues that the RPD reasonably found that this profile, combined with his travel to Canada aboard the MV Ocean Lady – a ship labelled as LTTE owned and operated and as carrying LTTE members, cadres and sympathizers – makes him a refugee sur place. There was a plethora of credible, reliable and objective evidence before the RPD that the MV Ocean Lady will go down in history as an LTTE-owned and operated ship, insidiously carrying LTTE cadres to Canada: see Canada (Minister of Citizenship and Immigration) v Flores Carrillo, 2008 FCA 94.
[58] The RPD’s sur place analysis was not disconnected from the Respondent’s ethnicity and imputed political opinion as the Applicant suggests. Rather, the Board included his ethnicity and perceived political opinion within its sur place analysis and overall determination. The RPD’s reasons refer repeatedly to the issue of Tamil ethnicity and imputed or perceived political opinion. The Board referred to the UNHCR Eligibility Guidelines to assess whether the Respondent fit within one of the five enumerated high-risk groups, and found that he fit the profile of “Tamils suspected of LTTE affiliation.” The Applicant is simply off-base in asking the Court to accept that the RPD declined to conduct an analysis of the Respondent’s ethnicity or perceived political opinion, the Respondent argues. The RPD was careful to focus on the mixed motives of the agents of persecution: based on his Tamil ethnicity plus his presence aboard an LTTE-owned and operated ship, the Sri Lankan authorities would surely suspect him of LTTE affiliation: B377, above; Canada (Minister of Citizenship and Immigration) v B344, 2013 FC 447 [B344]; B420, above; A032, above; B399, above. The Respondent quotes in particular Justice Blanchard’s analysis in B377, above, at paras 21-23:
[21] It is clear that the RPD turned its mind to the Respondent’s ethnicity in concluding as it did. It is also clear that the RPD was satisfied that the Respondent’s alleged fear of persecution was based at least in part on his Tamil ethnicity or race. The jurisprudence of this Court has accepted the proposition that where a fear of persecution is based on more than one motive, and where there is evidence to support a motive based on a Convention ground, nexus might be established. See: Gonsalves v. Canada (A.G.), 2011 FC 648 at paragraph 29.
[22] The circumstances here fall squarely within the circumstances underlying the decision in Veeravagu v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 468 (C.A.) (QL) in which Justice Hugessen implicitly dealt with the Convention nexus when he wrote:
In our view, it is obvious beyond any need of demonstration that if a person faces “real and oppressive” risks, including a risk of “substantial violence”, from state sponsored sources (the IPKF) because he or she belongs to a group one of whose defining characteristics is race, (young Tamil males), it is simply impossible to say that such person does not have an objective fear of persecution for reasons of race.
See also Nara v. Canada (Minister of Citizenship and Immigration), 2012 FC 364 at paragraph 38
[23] In its comprehensive reasons, the RPD dealt with the issue of race and found that the evidence established a “pattern of discrimination by government authorities against Tamils”. It also found that Tamil ethnicity is an “aggravating factor” in addressing the treatment the Respondent may receive upon his return. The RPD concluded that a nexus to a Convention ground was established, “in which the claimant’s Tamil race” along with other factors are combined elements of the grounds on which the Respondent may face persecution in Sri Lanka. In my view, this finding, reasonably open to the RPD on the record before it, satisfies the required nexus to a Convention ground, namely race.
[59] The Respondent argues that the facts in B377 are very similar to the present case, and the same reasoning applies. Travel aboard the MV Ocean Lady, on its own, is insufficient to support a finding of particular social group, and the RPD was quite conscious of this. However, the Board was also alert to the issues of the Respondent’s Tamil ethnicity and how he would be perceived by the Sri Lankan authorities in terms of his political opinion, and the danger to his life by virtue of these factors plus his voyage aboard the MV Ocean Lady.
[60] The Respondent argues that it is a critical premise in refugee determination law in Canada that a decision-maker can look to the circumstances of those similarly-situated to the claimant. He says that in assessing his claim, the RPD analyzed the evidence in a manner commensurate with the direction of this Court and the Federal Court of Appeal that:
In the context of claims derived from situations of generalized oppression, the issue is not whether the claimant is more at risk than anyone else in his country, but rather whether the broadly based harassment or abuse is sufficiently serious to substantiate a claim to refugee status…
Fi v Canada (Minister of Citizenship and Immigration), 2006 FC 1125 at para 14 [Fi], citing Salibian, above.
Unlike under section 97 of the Act:
[T]here is no requirement under section 96 of IRPA that the applicant show that his fear of persecu