PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the decision of the Immigration and Refugee Board (Refugee Protection Division) (the Board) dated June 12, 2006, which found that the applicant was neither a Convention refugee nor a person in need of protection.
[2] The applicant requests that the decision be set aside and the matter referred for redetermination by a differently constituted panel of the Board.
Background
[3] The applicant, Uthayakumar Selvam, is a Tamil citizen of Sri Lanka. He alleged having a fear of persecution on the basis of his race, imputed political opinion and membership in a particular social group, namely, young male Tamils from northern Sri Lanka. He also claimed to be a person in need of protection. The circumstances leading to the applicant’s claim for protection were set out in the narrative portion of his Personal Information Form (PIF).
[4] The applicant lived in Kopay, which is located in the northern region of Sri Lanka. Kopay was controlled by the Liberation Tigers of Tamil Eelam (the LTTE) during the 1990s. The applicant’s family were subjected to extortion by the LTTE, and the applicant and his father were forced to work for the movement. The family eventually moved to Puthukudiyirupu, Mullaitivu, because they feared mistreatment at the hands of the Sri Lankan army. However, the applicant and his siblings were still pressured to join the LTTE. In October 2000, the applicant went to live with his aunt in Colombo, in order to attend private school and learn English.
[5] He was later arrested by the police after they checked an identity document, which identified him as a resident of Mullaitivu. The applicant was detained for three days and questioned about the LTTE. His aunt paid a large ransom in order to secure his release. The applicant returned to Mullaitivu a week later, and was again forced to work and subjected to extortion by the LTTE. In December 2004, the LTTE contacted the applicant and told him to join their movement. The LTTE members indicated that the army was preparing for war and that the movement needed youths to join them.
[6] The applicant did not want to join the LTTE and raised money in order to flee Sri Lanka. He left Colombo and arrived in Dubai on February 13, 2005. The applicant left Dubai on February 15, 2005, and arrived in Toronto on February 20, 2005, where he immediately claimed refugee protection. The applicant’s refugee hearing was held on April 20, 2006 and his claim was denied by decision dated June 12, 2006. This is the judicial review of the Board’s decision.
Board’s Reasons
[7] The Board determined that the applicant’s claim was neither credible nor plausible, and rejected his claim for protection as a Convention refugee and a person in need of protection. The Board was mainly concerned with the applicant’s inconsistent evidence regarding the alleged agents of persecution in Sri Lanka.
[8] When asked by immigration officials whom he feared in Sri Lanka, the applicant answered: the LTTE and the army. His PIF indicated that he feared the LTTE. The applicant testified that he feared the LTTE, the Sri Lankan Armed Forces (SLAF), the police and several pro-Tamil groups (PLOTE, TELO, and EPDP). However, the applicant’s evidence indicated that he had not had any contact with these groups. The Board did not accept the applicant’s explanation that he considered the police and the army to be the same agent. Inconsistencies regarding whom he feared affected his credibility and were considered evidence of embellishment.
[9] The only credible agent of persecution was the LTTE. The applicant claimed that in December 2004, the LTTE told him to join them and train for battle. This was allegedly the reason why he fled Sri Lanka for Canada. The Board questioned why he left in 2004, since the war had been over for two years. He had evaded the LTTE during the entire war and could not explain why he chose to flee in 2004. The applicant lacked credibility and had not demonstrated a well-founded fear of persecution in Sri Lanka. In addition, his behaviour was not consistent with that of a person fleeing persecution.
[10] The Board then addressed the issue of an internal flight alternative (IFA). The applicant’s family lived in Kopay, which was under the control of SLAF, and his aunt lived in Colombo. The applicant claimed that he could not relocate because he had always lived in his village and did not want to leave. The Board did not accept this explanation. The applicant mentioned his arrest in Colombo, yet documentary evidence showed that the situation had changed since 2000. The Board found that search operations and travel restrictions upon northern Tamils had ended in 2002. The Board determined that the applicant could resettle in these areas, as they were not under LTTE control.
[11] The Board noted evidence that the LTTE travelled throughout Sri Lanka, which made it difficult for Tamils seeking refuge. However, the applicant could rely upon his family, therefore this was not relevant to his case. The Board did not believe that the LTTE would search Colombo or Kopay for the applicant, and found that he had an IFA in either of these areas.
Issues
[12] The issues are as follows:
1. Did the Board err in finding that the applicant lacked credibility?
2. Did the Board err in relation to its IFA finding?
Applicant’s Submissions
[13] The applicant submitted that the Board erred in finding that he had a viable IFA. It was submitted that the issue to be determined was whether there was a serious chance of persecution in the IFA, and whether it was unreasonable for the applicant to reside in the new location (see Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589, (1993) 22 Imm. L. R. (2d) 241 (C.A.)).
[14] The applicant submitted that the Board erred in finding that family members could protect a person from the LTTE. The applicant testified that he was in hiding while living with his aunt in Colombo. It was submitted that a location is not an IFA if a person has to remain in hiding (see Kaschine v. Canada (Minister of Citizenship and Immigration) (1995), 55 A.C.W.S. (3d) 1007 (F.C.T.D.)). The applicant submitted that a large urban area was not necessarily an IFA (see Reynoso v. Canada (Minister of Citizenship and Immigration) (1996), 107 F.T.R. 220, 60 A.C.W.S. (3d) 1214 (F.C.T.D.)). It was submitted that the Board erred in finding that Kopay was an IFA, as there was no evidence that he could get there without passing through LTTE lines. The applicant noted documentary evidence indicating that there were still search arrests operations affecting Tamils in Colombo.
[15] The applicant submitted that the Board erred in failing to consider his fear of the police. The applicant noted evidence that torture was used by the police with impunity. The Board did not contest that the applicant was arrested and detained by the police in 2000, nor did it find that he did not fear the police. It was submitted that the Board had an obligation to identify the agents of persecution (see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, (1993) 103 D.L.R. (4th) 1). The applicant submitted that his understanding that the police and the army were the same agent was reasonable, since both were controlled by the Sri Lankan government. The applicant testified that he considered them to be similar because they did the same things, not because they were the same thing.
[16] It was submitted that the Board erred in finding that he had named agents of persecution which had not caused him problems in the past. The applicant submitted that refugee claimants did not have to have problems with agents of persecution in the past in order to assert a fear of persecution (see Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250, (1990) 73 D.L.R. (4th) 551 (C.A.)). The applicant noted that past persecution was not sufficient to found a claim for refugee status (see Sarmis v. Canada (Minister of Citizenship and Immigration) (2004), 245 F.T.R. 312, 2004 FC 110).
[17] The applicant submitted that the Board was overzealous in finding contradictions in his evidence regarding the agents of persecution he feared. During the hearing, the applicant was asked whom he feared in the future, should he return to Sri Lanka. He therefore set out the agents of persecution that he would likely encounter upon his return to Sri Lanka.
[18] The applicant submitted that the Board erred in finding that he lacked credibility because he feared recruitment for a war which post-dated the ceasefire. The documentary evidence indicated that the LTTE was recruiting children. The applicant had been forced to work and donate money to the LTTE, and described his fear as cumulative in nature. The applicant submitted that the Board erred in failing to consider whether the cumulative effects of his experience in Sri Lanka constituted persecution (see Tolu v. Canada (Minister of Citizenship and Immigration), (2002) 218 F.T.R. 205, 202 FCT 334).
[19] The applicant submitted that where a claim was based upon cumulative grounds, the issue of delay in fleeing could not be raised (see Ibrahimov v. Canada (Minister of Citizenship and Immigration) (2003), 32 Imm. L.R. (3d) 135, 2003 FC 1185). The applicant submitted that the Board failed to consider his cumulative fear of persecution when determining whether an IFA existed in Sri Lanka. It was submitted that the applicant’s experiences outside the IFA could form part of a cumulative assessment when considering the existence of an IFA (see Balasubramaniam v. Canada (Minister of Citizenship and Immigration) (1996), 64 A.C.W.S. (3d) 660 (F.C.T.D.)).
Respondent’s Submissions
[20] The respondent submitted that the Board was entitled to find that the applicant lacked credibility on the basis of contradictions and inconsistencies in his story and the evidence (see Leung v. Canada (Minister of Employment and Immigration) (1990), 74 D.L.R. (4th) 313, 129 N.R. 391 (F.C.A.)). It was submitted that the Board considered all of the evidence and determined that the applicant was not credible. The respondent submitted that the inconsistencies in identifying an agent of persecution undermined the applicant’s claim. It was submitted that credibility findings based on problems in a claimant’s testimony were within the discretion of the trier of fact, and the Court should not interfere (see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 , 42 A.C.W.S. (3d) 886 (F.C.A.)).
[21] The respondent submitted that standard of review applicable to an IFA finding was patent unreasonableness, as the determination was factual in nature (see Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, (1998), 160 D.L.R. (4th) 193). It was submitted that the test to show than an IFA finding was unreasonable was high, as the applicant had to show that his safety would be jeopardized. The respondent submitted that based upon the evidence, the IFA finding was open to the Board and the applicant had failed to demonstrate otherwise. The Board was satisfied that there was no serious possibility of the applicant being persecuted in Colombo, therefore he could settle there.
[22] The respondent submitted that the Board addressed the applicant’s fear of the police resulting from his detention. It was submitted that the Board considered the evidence and changes in country conditions since the detainment, such as the removal of travel restrictions. The respondent submitted that the applicant did not demonstrate that he faced a risk in Colombo. It was submitted that the Board was presumed to have considered and weighed all of the evidence.
[23] The Board found it reasonable to expect the applicant to seek safety in Colombo before seeking protection in Canada (see Thirunavukkarasu above). It was submitted that persecution in a region was not persecution within the meaning of the Convention if the government was capable of providing protection elsewhere within its territory, and if it may be reasonably expected that victims will move to a region of the country where they will be protected (see Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605, (1991)126 N.R. 126 (C.A.)).
[24] The respondent submitted that the applicant did not discharge the onus of proof to show that it was unreasonable for him to seek an IFA (see Thirunavukkarasu above). It was submitted that the applicant failed to show that the Board ignored or misconstrued evidence, misunderstood the legal test, or made perverse findings in this regard.
Applicant’s Reply
[25] The applicant cited Iruthayanathar v. Canada (Minister of Citizenship and Immigration) (2000), 98 A.C.W.S. (3d) 884 (F.C.T.D.), in support of the proposition that if a Tamil claimant faced a risk in Colombo, he or she might be determined a Convention refugee, given the impossibility of avoiding Colombo before travelling to other parts of the country.
Analysis and Decision
Standard of Review
[26] It is well established that the Board’s credibility findings are entitled to a high level of deference and are subject to review on the standard of patent unreasonableness (see Aguebor above). The Board’s finding of an internal flight alternative is also reviewable on the standard of patent unreasonableness (see Cantarero v. Canada (Minister of Citizenship and Immigration) (2005), 139 A.C.W.S. (3d) 539, 2005 FC 649).
[27] Issue 1
Did the Board err in finding that the applicant lacked credibility?
The Board determined that the applicant lacked credibility due to inconsistencies in his evidence regarding the agents of persecution he feared in Sri Lanka. Immigration officials asked the applicant whom he feared in Sri Lanka, and the notes taken indicate that he answered “both army and LTTE.” The Board’s reasons state that in “the claimant’s PIF, it appears clearly that the LTTE is an agent of persecution, but there is no other indication of any other person or group the claimant would be afraid of.” I would note that the applicant’s PIF narrative states that he feared “the army, the police and the LTTE”. The following exchange took place during the refugee hearing:
BY PRESIDING MEMBER (to person concerned)
…
Q. I understand that, sir. That’s why I don’t understand why you’re afraid of these people?
A. That is I cannot live in any parts of Sri Lanka. The question is why are you afraid of these groups. In future I cannot live in any, I cannot live in an area controlled by the army, sorry, by the Tigers, because they had already given the last warning that if I had to stay in their area I had to join them. So if I had to go back, I had to live in some other areas, EDPD, PLOT, so the EDPD and the PLOT are pro-government group, they are functioning against the LTTE. So if a young person like me enter an area like that, they would consider me as a person who is against them. So they would show their hatred. So using me they want to show their hatred.
…
Q. Outside of these groups that you mentioned now, the EPDP, PLOT, TELO, Karuna is there any other, and the LTTE, of course, is there any other group or organization that, or individuals that you are afraid of in Sri Lanka?
A. Afraid of the police and the army.
…
Q. So why are you afraid of the police and the army?
A. I was arrested by the police, and army and the police are functioning together now. So now I am afraid of these people because I am young Tamil person. So they would torture me.
- Sir, when you first made your refugee application and were interviewed by an immigration officer, and I’m looking at A-2, the immigration officer interview notes, question 4, you said that you were afraid of the … you wrote that you were afraid of the army and of the LTTE. Now today you list a whole series of groups including the police that are not mentioned in question 4.
A. So we consider the police, when we tell police army also included in that because they work together.
- But there’s no mention of TELO, PLOT, any of these other groups that you say you’re afraid of.
A. For this time I did not have any contacts with them because I did not live in an area controlled by the government.
- No, but sir, you say today you are afraid of them. When you first arrived and made your refugee application you only listed the LTTE and the army nobody else.
A. So here I was asked whether there are any groups whom I might be afraid. Then only I thought of these groups. In future I might be…they might be troublesome.
And at page 173 of the Tribunal record:
BY PRESIDING MEMBER (to person concerned)
…
Q. Sir, and did you ever have any particular problems with the Sri Lankan Armed Forces yourself?
A. Police has arrested me.
- Okay, but I’m asking you about the army, sir. I understand the police in Colombo.
A. Even though the army did not arrest me, people consider them very similar. Whatever the police do the army also they do the same things.
Having reviewed the hearing transcript, it is clear that the applicant expressed his fear of groups such as PLOTE and EPDP as a result of the possibility of his return to Sri Lanka, not his past experience in the country. I do not believe that the applicant’s statement in this regard was a major inconsistency upon which to ground a negative credibility finding.
[28] The main discrepancy with respect to the agents of persecution noted by the Board was the applicant’s alleged fear of the army and the police:
Overall, the panel found a lack of credibility and plausibility in the present claim. Chief among the panel’s concern is the claimant’s inconsistent evidence on who were or are the agents of persecution in Sri Lanka.
…
… Neither did the claimant ever have a problem or reason to fear the SLAF. With respect to the latter, the claimant spoke about his detention in Colombo in 2000. Yet he was arrested by the police. According to the claimant, the police and army are the same thing. The panel does not accept the claimant’s explanations as credible. The inconsistency on whom the claimant fears, in the panel’s mind, affects the claimant’s credibility and is demonstrative of an individual engaging in embellishment.
[29] The Board may consider inconsistencies in a claimant’s evidence in assessing his or her credibility (see Leung above). The Board placed a particular emphasis upon the applicant’s explanation that he considered the army and the police to be the same entity. While the Board was entitled to reject the applicant’s explanation, I do not believe that the resulting negative credibility finding was appropriate. The applicant’s PIF narrative states that he feared the police and had been arrested by them in 2000.
[30] In addition, the applicant’s PIF states that his family fled their home in 1995 due to the presence of the army. The applicant also testified that he considered the police and the army to be similar, as they engaged in similar activities. In my view the applicant did not provide inconsistent testimony when he indicated that he feared the police and the army, since both of these agents were named in his PIF. While it was open to the Board to question the legitimacy of the applicant’s fear of the army, I believe that the Board erred in basing its negative credibility finding upon the alleged inconsistency regarding the agents of persecution.
[31] The Board found that the only credible agent of persecution was the LTTE. However, the Board found that the timing of the applicant’s potential recruitment by the LTTE, being two years after the ceasefire in Sri Lanka, lacked credibility. At the hearing, the Board asked the applicant to explain this issue:
BY PRESIDING MEMBER (to person concerned)
Q. But somehow in December of 2004 when there hasn’t been a battle for at least at that point in time two and a half years if not longer, you fear that they’re going to forcibly recruit you to fight but there’s nothing to fight for at that point in time?
A. The Tigers have declared that they were about to start the final war that is considered stage 4.
- Okay. No, but you can see, sir, it doesn’t seem to make a lot of sense if while during the war years you were able to avoid being forcibly recruited that you would be concerned about being recruited during a time when there’s no fighting going on.
A. Even though there was peace for some time, the Tigers made use of that period to strengthen their forces and get prepared for the final war.
…
A. So the Tigers plan to get the people, more and more people to participate in this kind of war to win their war. So they told the people that it would be the final war, the last push so everybody should contribute to this.
[32] The applicant explained why the LTTE were forcibly recruiting him when the war was not going on. He stated that the LTTE was preparing for the final war and planned to recruit people for the final war or last push. The Board noted that the applicant avoided recruitment when the war actually was going on. A review of the transcript shows that the applicant avoided recruitment during the war by working for the LTTE and paying them money.
[33] In my view, the Board committed a patently unreasonable error in refusing the applicant’s claim on the basis of a lack of credibility.
[34] Issue 2
Did the Board err in relation to its IFA finding?
The Board determined that the applicant had a viable internal flight alternative in areas of Sri Lanka which the LTTE did not control, such as Kopay or Colombo. The applicant submitted that the Board erred with respect to this finding, since it failed to consider whether he faced a serious chance of persecution in these locations, or whether it was reasonable for him to relocate to an IFA. The respondent submitted that the applicant had a viable IFA, since the applicant had failed to demonstrate that he would be at risk in these areas.
[35] Justice Layden-Stevenson cited the test for an IFA at paragraph 23 of Cantarero above:
The test with respect to an IFA is two pronged and is articulated in Rasaratnam v. Canada (the Minister of Employment and Immigration), [1992] 1 FC 706 (CA) and Thirunavukkarasu v. Canada (Minister of Citizenship and Immigration), [1994] 1 FC 589 (CA):
The RPD must be satisfied on a balance of probabilities that there is no serious possibility of the Applicant being persecuted in the proposed IFA and that in all the circumstances, including the circumstances particular to the Applicants, the conditions in the proposed IFA are such that it is not unreasonable for the Applicants to seek refuge there.
[36] The Board based its IFA finding upon the fact that cordon and search operations for northern Tamils had ended following the 2002 ceasefire. The Board acknowledged documentary evidence showing that Tamils still had difficulty obtaining internal refuge; however it found this information irrelevant, as the applicant had a family network upon which to rely. The applicant noted the following documentary evidence, dated January 7, 2006 which stated:
In a flagrant violation of basic democratic rights, calculated to inflame communal tensions, Sri Lanka’s security forces launched a massive cordon and search operation against Tamil residents of the capital Colombo on December 31.
…
It was the first major anti-Tamil crackdown in Colombo since the signing of a 2002 ceasefire agreement between the Sri Lankan government and the Liberation Tigers of Tamil Eelam…
[37] Given the documentary evidence noted above, I find that the Board erred in concluding that Tamils in Sri Lanka were no longer subject to cordon and search operations. Regardless of the Board’s findings in this regard, I also find its conclusion about the applicant’s reliance upon a family network problematic. In my view, the Board had to address why the existence of a “family network” would overcome what it identified as “the difficulty of internal refuge for Tamils, given the fact that the members of the LTTE are now able to travel throughout the country.”
[38] The Board failed to assess whether it was reasonable for the applicant to seek refuge in Colombo or Kopay, despite documentary evidence which clearly refuted its findings about the situation faced by the applicant in the potential IFA locations.
[39] The application for judicial review is therefore allowed and the matter is referred to a different panel of the Board for redetermination.
[40] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
JUDGMENT
[41] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different panel of the Board for redetermination.
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set out in this section.
The Immigration and Refugee Protection Act, S.C. 2001, c.27.:
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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.
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 (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(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,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
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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.
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) 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) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(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) 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) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3814-06
STYLE OF CAUSE: UTHAYAKUMAR SELVAM
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
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Micheal Crane
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Gordon Lee
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SOLICITORS OF RECORD:
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Micheal Crane Toronto, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada
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