Date: 20040729
Docket: IMM-5779-03
Citation: 2004 FC 1041
Ottawa, Ontario, this 29th day of July, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
NITHIYANANTHAN NILANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Applicant is a 30 year-old female Tamil citizen of Sri Lanka and claims to fear persecution at the hands of the army, police, Liberation Tigers of Tamil Eelam (LTTE), and pro-government Tamil militant groups.
[2] In a decision dated June 11, 2003, the Immigration and Refugee Board, Refugee Protection Division (the _Board_) determined that the Applicant was not a Convention refugee or a person in need of protection.
[3] The Applicant seeks judicial review of this decision.
Issues
[4] The Applicant rests her case on two following issues:
1. In finding that the discrimination that the Applicant was likely to face even _cumulatively does not reach the threshold of persecution_, did the Board err by applying the wrong legal test for determining whether the Applicant possesses a well-founded fear of persecution?
2. Did the Board provide deficient reasons with respect to this particular finding, thereby breaching the principles of natural justice?
Analysis
Issue #1: Did the Board err by applying the wrong legal test for determining whether the Applicant possesses a well-founded fear of persecution?
[5] The Applicant submits that the following statement from the decision evinces the Board's application of the incorrect standard to the issue of persecution:
We find that the discrimination the claimant is likely to face if she returns to Colombo even cumulatively does not reach the threshold of persecution.
[6] In the Applicant's view, use of the word _likely_ indicates that the standard of balance of probabilities was applied to the issue of persecution.
[7] I disagree. It is clear to the reader that the word _likely_ is being used to modify the word discrimination. In the impugned passage, the Board is not discussing likelihood or probability that the Applicant would face discrimination amounting to persecution. Rather, the Board is discussing the type of discrimination that the Applicant is _likely_ to face-a pure finding of fact determined on the balance of probabilities-which it found did not amount to persecution _even cumulatively_.
[8] Further, the Applicant refers to one sentence in the decision. Reading the passages of the decision that follow the impugned sentence and reading the decision as a whole, I am satisfied that the Board applied the correct test. There is no application of the wrong standard and, thus, no reviewable error.
Issue #2: Did the Board provide deficient reasons with respect to this finding, thereby breaching the principles of natural justice?
[9] The Applicant submits that the reasons are deficient. In particular, the Applicant states that the Board does not provide an adequate explanation for its conclusion that the discrimination that the Applicant was likely to face _even cumulatively does not reach the threshold of persecution_. I disagree.
[10] In the section of the Board's decision that is in issue, the Board was considering whether the discrimination faced by the Applicant amounted to persecution. In Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.) at para. 3 leave to appeal dismissed, [1993] S.C.C.A. No. 461, the Federal Court of Appeal held that whether discrimination amounts to persecution raises a question of mixed fact and law:
It is true that the dividing line between persecution and discrimination or harassment is difficult to establish, the more so since, in the refugee law context, it has been found that discrimination may very well be seen as amounting to persecution. It is true also that the identification of persecution behind incidents of discrimination or harassment is not purely a question of fact but a mixed question of law and fact, legal concepts being involved. It remains, however, that, in all cases, it is for the Board to draw the conclusion in a particular factual context by proceeding with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein, and the intervention of this Court is not warranted unless the conclusion reached appears to be capricious or unreasonable.
[1] This Court must assess, therefore, whether the Board undertook a careful analysis of the evidence and whether its conclusion was capricious or unreasonable. In my view, the Board's analysis was careful and its conclusion is neither capricious nor unreasonable.
[2] Reasons must be sufficient to allow a party to know why a claim is rejected and to be able to decide whether to seek leave for judicial review (Townsend v. Canada (Minister of Citizenship and Immigration) (2003), 231 F.T.R. 116 at para. 22; Mendoza v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 846 (F.C.) (QL) at para. 4). The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors (VIA Rail Canada Inc. v. National Transportation Agency (2000), 193 D.L.R. (4th) 357 (F.C.A.) at para. 22). Finally, the decision must be read as a whole.
[3] In my view, the reasons, when read as a whole, are sufficiently clear and intelligible to permit the Applicant to know why her claim was rejected. Relying on the documentary evidence before it, the Board described in detail the treatment that the Applicant is likely to face upon returning to Colombo. After weighing this evidence, the Board concluded that this expected treatment does not amount to persecution. The Applicant's particular vulnerability did not, in this case, impact the conclusion of the Board on this objective component of the Applicant's claim. These reasons are to my mind sufficient and I see no reason for this Court to intervene.
[4] Further, I note that the Board's conclusion that the Applicant was not credible was determinative of her claim and that the Applicant has not challenged any of the Board's credibility findings. A credibility finding is determinative of a refugee claim (Rahaman v. Canada (Minister of Citizenship and Immigration) (2002), 211 D.L.R. (4th) 455 (F.C.A.); Yassine v. Canada (Minister of Employment and Immigration) (1994), 27 Imm. L.R. (2d) 135 (F.C.A.); Mathiyabaranam v. Canada (Minister of Citizenship and Immigration) (1997), 156 D.L.R. (4th) 301 (F.C.A.); Sheikh v. Canada (Minister of Employment and Immigration) (1990), 71 D.L.R. (4th) 604 (F.C.A.)).
[5] Having found the Applicant not to be credible, the Board was not obligated to go through the fruitless exercise of considering the objective basis of fear. If there were errors (and I do not believe there were any) with respect to the Board's findings that the claim was not objectively well-founded, these errors are immaterial to the decision and, therefore, insufficient to be the basis for obtaining leave (Yassine, supra at paras. 8-11; Patel v. Canada (Minister of Citizenship and Immigration) (2002), 288 N.R. 48 (F.C.A.) at para. 5).
Conclusion
[6] For these reasons, the application will be dismissed. Neither party proposed a question for certification. None will be certified.
ORDER
THIS COURT ORDERS THAT:
1. The application is dismissed; and,
2. No question of general importance is certified.
_Judith A. Snider_
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5779-03
STYLE OF CAUSE: NITHIYANANTHAN NILANI v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 26, 2004
REASONS FOR ORDER BY
AND ORDER: The Honourable Madam Justice Snider
DATED: July 29, 2004
APPEARANCES:
Mr. Micheal Crane FOR APPLICANT
Mr. Greg G. George FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Micheal Crane FOR APPLICANT
Barrister & Solicitor
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada