Ottawa, Ontario, March 27, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
MILAN SULAKSHAN RAMANAYAKE SUDUWELIK
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application by Milan Sulakshan Ramanyake Suduwelik challenging a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) which denied his claim to refugee protection.
Background
[2] Mr. Suduwelik entered Canada from Sri Lanka on July 14, 2002 under a student visa. It was not until September 22, 2004 that he sought refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). His claim to protection was based on allegations of political persecution largely directed by an influential adversary and member of the Sri Lankan Parliament, Chandana Kathriarachchi. This included alleged incidents of wrongful arrests, false accusations, assaults, threats, harassment and a fire bombing, involving himself, his family and his political associates.
[3] Mr. Suduwelik claimed that in 2001 he had supported the election campaign of Mr. Kathriarachchi’s political rival, Ravi Karunanayake. In the course of his employment, he had also directed the seizure of seven vehicles that had been leased by Mr. Kathriarachchi. These actions, he said, led to his being targeted for reprisal.
[4] Mr. Suduwelik gave evidence that, in July 2001, Mr. Kathriarachchi and his supporters had protested the seizure of the seven (7) leased vehicles by ransacking the family home and by assaulting his parents. This, he said, was followed almost immediately by his arrest, for the illegal seizure of the leased vehicles. He claimed to have been beaten by the police while in custody but he was released by the Court on the following day and returned to work.
[5] Mr. Suduwelik also testified that in August 2001 the police attended at his father’s photo studio to arrest a young Tamil employee. He and his father were also arrested, ostensibly for sheltering a member of the Liberation Tigers of Tamil Eelam (LTTE). During their detention of six (6) days, they claimed to have been beaten and abused by the police. Mr. Suduwelik stated in his Personal Information Form (PIF) and in his testimony to the Board that he believed his arrest had been politically motivated and orchestrated by Mr. Kathriarachchi.
[6] Also in August 2001, Mr. Suduwelik said that Mr. Kathriarachchi and his supporters appeared at the family home and attacked and threatened the family (including himself). This attack was supposedly motivated by Mr. Suduwelik’s political support for Mr. Karunanayake. This was followed almost immediately by the firebombing of a rental home owned by his parents and by a campaign of threats and harassment. The firebombing incident was corroborated by a formal written complaint by Mr. Suduwelik’s father to the local police.
[7] Mr. Suduwelik’s problems supposedly did not end in 2001. He said that Mr. Karunanayake and a number of his political supporters had been arrested in 2004 by the authorities and three or four of them were “missing”. He said that around the same time he had learned that six or seven “people” had assaulted his parents in their home and searched the house for him. He also claimed to be on a government list of persons who were subject to arrest. This threat of arrest was corroborated in a letter written by a lawyer hired by Mr. Suduwelik’s parents which stated in part:
It is also revealed that a list has been prepared indicating the names of several other persons who have been in the employment of Mr. Ravi Karunanayake to be arrested and taken into custody and that your son’s name too has been included in the said list.
In the foregoing circumstances I wish to inform you that by a Police Unit established unlawfully steps have already been taken to arrest your son and take him into custody.
In the event of your son being so arrested and taken into custody there is an imminent danger to his life as well as to his freedom.
It is further revealed that Sri Lanka Airport Authorities have already been instructed to take into custody promptly all persons who are said to be listed in the said list immediately on their return to Sri Lanka from abroad.
In the aforesaid premises it is my advice to you to request your son not to return to Sri Lanka as there is an imminant danger to his life and body.
[Quoted from original text]
[8] As a result of these alleged events, Mr. Suduwelik testified that he fled to Canada. He said that his parents continued to live in fear in Sri Lanka. He also stated that he had learned that Mr. Karunanayake and his supporters had been attacked and threatened as late as October 2005.
The Board Decision
[9] The Board rejected Mr. Suduwelik’s evidence as unreliable. While the Board clearly acknowledged the existence of violence surrounding Sri Lankan political activity (mostly during election campaigns) it found nothing in the documentary evidence to establish a pervasive culture of political violence directed at rank and file political activists.
[10] The decision also noted that Mr. Suduwelik’s superior in the UNP Youth League, P.D. Perera, was able to continue his political activity without evidence of political persecution. The Board made specific reference to a letter from Mr. Perera which, it said, contained no indication of any ongoing persecution directed at Mr. Perera. This point is made in the following passage from the Board’s decision:
The claimant testified that Perera was arrested in 2004 but was released and has been free since. Perera has also submitted evidence to support the claimant’s assertion that he faces persecution. There is no evidence from that letter that Perera himself has been killed or persecuted because of his political leadership role. The claimant provided no reliable evidence on why he, an ordinary member, would face persecution when his superior in the party is not facing such persecution.
[Emphasis added]
[11] The Board also discounted Mr. Suduwelik’s evidence because he had failed to indicate in his PIF that he was a coordinator or group leader in the Youth League and because he had given inconsistent testimony on this same issue.
[12] The Board went on to describe Mr. Suduwelik’s evidence concerning the political persecution of his Sir Lankan associates in 2004 as second hand, sketchy and self-serving.
[13] The Board rejected the Sri Lankan lawyer’s letter attesting to Mr. Suduwelik’s risk of “false” arrest because that letter referred to the targets of arrest, including Mr. Suduwelik, as employees of Mr. Karunanayake. Because Mr. Suduwelik was never a paid employee of Mr. Karunanayake, the letter was found to be unreliable. The Board also referred to this letter as self-serving and inconsistent with the documentary evidence on Sri Lanka.
[14] In considering the alleged incident in 2001 involving the arrest of Mr. Suduwelik and his father for sheltering a member of the LTTE, the Board held that there was no reliable evidence of a political motive. The Board went on to apply its specialized knowledge that the Sri Lankan authorities sometimes arrest the employers of persons suspected of having LTTE links.
[15] The Board did acknowledge documentary evidence that Mr. Karunanayake was facing criminal charges in Sri Lanka for misappropriation of funds but discounted its significance by saying that this was a matter for determination by the Sri Lankan Courts.
[16] The Board went on to say that there was “no evidence of attempted harm to [Mr. Suduwelik] during the 2001 election or after the election was over”.
Issues
[17] (a) What is the appropriate standard of review for the issues raised in this proceeding?
(b) Did the Board commit any reviewable errors in its decision?
Analysis - Standard of Review
[18] With one exception, Mr. Suduwelik’s criticisms of the Board’s decision are directed at its credibility findings. It is well established that a credibility finding by the Board can only be set aside if it is found to be patently unreasonable: see Offei v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 2000, 2005 FC 1619, especially para. 9, and Crespo v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 849, 2005 FC 672. The rationale for this heightened level of deference was articulated by the Federal Court Appeal in the often-cited case of Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315, [1993] F.C.J. No. 732 where Justice Robert Décary stated:
4 There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
[19] Mr. Suduwelik has raised one issue of procedural fairness, that being the Board’s failure to give notice of its intention to rely upon specialized knowledge. That is an issue to be judged on a standard of correctness: see Ha v. Canada (Minister of Citizenship and Immigration), [2004] FCJ No. 174, 2004 FCA 49.
Analysis - Board’s Decision
[20] This was a case of credibility. The Board had serious misgivings about Mr. Suduwelik’s story and declined to accept it. It was certainly open to the Board to have rejected Mr. Suduwelik’s claim on credibility grounds because, in a number of areas, his testimony appears doubtful, tenuous or implausible.
[21] The problem, though, is that the Board’s decision cannot be sustained for the reasons it gave. There is simply too much material evidence that the Board neglected to consider to allow its decision to stand. This problem is magnified by the Board’s heavy reliance on immaterial evidentiary points to support its conclusion and by at least one significant factual error. The cumulative effect of these errors is sufficient to require that this matter be reheard on the merits.
[22] The primary stated basis for the Board’s conclusion that Mr. Suduwelik was not at risk of political persecution was that his personal situation as a supposed rank and file political activist did not match the risk profile described in country condition reports. Although the Board’s concern is not entirely unwarranted, Mr. Suduwelik’s alleged situation of personal risk was not as simple as the Board considered it to be.
[23] The Board was obviously concerned about Mr. Suduwelik’s political profile and found that he had subsequently embellished his status as a youth leader to enhance the perception of personal risk. That was a finding reasonably open to the Board. However, the difficulty with the Board’s treatment of this issue is that it ignored the arguable significance of Mr. Suduwelik’s evidence that he had been instrumental in seizing a number of leased vehicles from Mr. Kathriarachchi and it was this incident which raised his profile as a target for retribution. The Board mentioned this incident in passing but failed to analyse its potential significance in taking Mr. Suduwelik outside of the general risk profile. The Board also failed to acknowledge a number of news reports that indicated that Mr. Kathriarachchi and his supporters were especially prone to political violence and that Mr. Kathriarachchi may have been a suspect in a murder case. The Board’s acknowledgement of political violence as a general phenomenon in Sri Lanka is not sufficient to address the specific evidence bearing on Mr. Kathriarachchi’s history of violence. Mr. Suduwelik’s evidence indicated that he was not targeted by Mr. Kathriarachchi and his followers simply because he was an “ordinary member” of an opposing political party. It was incumbent on the Board to consider his risk profile in light of all the evidence and not simply to rely upon generalized country condition evidence.
The Board’s decision also fails to squarely confront Mr. Suduwelik’s evidence of violent attacks directed at himself, his family and his political allies. Instead, the Board resorts to vague conclusionary assertions that Mr. Suduwelik “provided no reliable evidence” or that his evidence was “self-serving”. If the Board believed that Mr. Suduwelik’s evidence was unreliable, it had a duty to say why that was so: see Hilo v. Canada (Minister of Employment and Immigration), [1991] FCJ No. 228, 130 N.R. 236. The vague characterization of a claimant’s testimony as self-serving is also unhelpful because a refugee’s evidence will seldom be otherwise.
[24] Where the Board did attempt to identify the source of some of its credibility concerns, it did so in a very unconvincing way. For example, it rejected the corroborating letter from Mr. Perera largely on the strength of an erroneous perception that the letter failed to establish that Mr. Perera had been persecuted for his political activity. The Board erred on this point by missing Mr. Perera’s statement that he had been threatened by his political adversaries in the same manner as Mr. Suduwelik.
[25] The Board’s rejection of the Sri Lanka lawyer’s letter which asserted that Mr. Suduwelik was on a list of activists subject to political arrest was based, in large measure, on a semantic nuance. The Board noted that the letter characterized the targets of reprisal, including Mr. Suduwelik, as having been “employed” by Mr. Karunanayake. The Board found this to be inconsistent with Mr. Suduwelik’s evidence that he was an unpaid political volunteer. While in a technical legal sense the verb “employ” may connote work rendered for a wage, in common usage the word can mean only the putting of some person or thing into use or service. The Board may have had reason to be sceptical about this letter but not for the reason it gave.
[26] It is also of significance that the Board’s decision fails to acknowledge a considerable amount of corroborating evidence including two official complaint reports to the police attesting to the family assault and the firebombing incidents in September, 2001 , affidavits by Mr. Suduwelik’s parents, two medical reports documenting injuries sustained by Mr. Suduwelik, a letter from Mr. Karunanayake, and a considerable amount of documentary evidence referencing political violence by Mr. Kathriarachchi and his supporters. Some of this evidence is particularly germane because it contradicted the Board’s finding that there was no evidence of anyone attempting to harm Mr. Suduwelik or his family between August, 2001 and July, 2002 (eg. the alleged firebombing was in September, 2001).
[27] While the Board does not have an obligation to mention every piece of evidence in its decision, the failure to note important evidence running contrary to the Board’s findings will support - and in this case does support – an inference that the decision was made without regard to the evidence. Here I rely on the recent decision by Justice Judith Snider in Jones v. Canada (Minister of Citizenship and Immigration), [2006] FCJ No. 591, 2006 FC 405 at para. 37 where she stated:
[37] As a general proposition, the Board is entitled to prefer some documentary evidence above others (Maximenko v. Canada (Solicitor General), [2004] F.C.J. No. 606, 2004 FC 504 at para. 18). It is also trite law to say that the Board need not refer to every piece of evidence before it (ibid.). However, if the Board fails to discuss important, contradictory evidence, then this Court may conclude that the Board ignored or misapprehended key facts and came to an erroneous decision (Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D.) at para. 17). The questions becomes whether, overall, this evidence is “so important and vital that failure to acknowledge it may constitute a reviewable error” (Johal v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1760 at para. 10 (T.D.)). In my view, the evidence that I have identified above falls into this category. The Board’s failure to acknowledge and weigh this evidence is a reviewable error.
[28] The Board’s treatment of Mr. Suduwelik’s evidence of being arrested along with his father for harbouring a young Tamil is also troublesome. Mr. Suduwelik testified that he believed this incident to be connected to his difficulties with Mr. Kathriarachchi and there is at least a temporal relationship between this event and several other incidents of alleged persecution by Mr. Kathriarachchi and his supporters. The Board dismissed this evidence as “unreliable” and relied instead on its specialized knowledge that the Sinhalese employers of suspected Tamils are sometimes arrested and interrogated. Mr. Suduwelik was given no prior notice by the Board that it intended to rely upon its specialized knowledge and he argues that this was a breach of s. 18 of the Refugee Protection Division Rules, S.O.R./2002-228 (Rules) and a breach of the rules of natural justice. The Respondent argues that if such a breach occurred it was of no material significance to the outcome.
[29] The requirement for the Board to give notice of its intended use of specialized knowledge under s. 18 of the Rules is well understood and rigorously enforced in cases where the knowledge applied could have affected the Board’s decision: see N’Sungani v. Canada (Minister of Citizenship and Immigration), [2004] FCJ No. 2142, 2004 FC 1759 at para. 24. In this case the Board declined to consider an incident of an allegedly politically motivated arrest on the strength of its specialized knowledge. This was a material aspect of Mr. Suduwelik’s claim to persecution and, had he been given prior notice, he would likely have made some effort to bolster his case. In the result, this error of procedural fairness is of sufficient concern that it justifies a rehearing of Mr. Suduwelik’s case.
[30] For all of the reasons given above, this application is allowed with the matter to be remitted to a differently constituted Board for a redetermination on the merits.
[31] Neither party proposed a certified question and no question of general importance arises from this decision.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is allowed with the matter to be remitted to a differently constituted Board for a redetermination on the merits.
"R. L. Barnes"
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2581-06
STYLE OF CAUSE: MILAN SULAKSHAN RAMANAYAKE
SUDUWELIK v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: February 28, 2007
APPEARANCES:
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KRISTINA KOSTADINOV
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MICHAEL BUTTERFIELD
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SOLICITORS OF RECORD:
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WALDMAN & ASSOCIATES TORONTO, ONTARIO
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JOHN H. SIMS, Q.C. DEPUTY ATTORNEY GENERAL OF CANADA TORONTO, ONTARIO |
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