MIRAJH DEVANANDAN Applicant v. THE MINISTER OF, 2016 FC 768

Date: 20160712 Docket: IMM-4602-15 Citation: 2016 FC 768 St. John’s, Newfoundland and Labrador, July 12, 2016 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:MIRAJH DEVANANDANApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] Mr. Mirajh Devanandan (“the Applicant”) seeks judicial review of the decision of the Immigration and Refugee Board,Refugee Protection Division (the “RPD”) dated September 21, 2015, denying his claim to be found a Convention refugee or a person inneed of protection, pursuant to

section 96 and subsection 97(1), respectively, of the Immigration and Refugee Protection Act, S.C. 2001,c. 27 (the “Act”). [2] The Applicant is a citizen of Sri Lanka. He claims to be at risk of persecution because he is perceived to be a person withlinks to the Liberation Tigers of Tamil Eelam (the “LTTE”).

He also claims to be at risk because he is a failed refugee claimant. [3] The RPD found that the Applicant had not filed persuasive evidence that he fit the risk profiles identified in the UNHCREligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka (the “UNHCR Guidelines”).

Italso concluded that there were insufficient grounds to fear persecution as a failed asylum seeker. [4] The RPD considered the risk to the Applicant from pro-government groups, paramilitary groups and other groups involvedin criminal activities to be a generalized risk faced by most Tamil communities in Sri Lanka. It found that the Applicant had not providedsufficient evidence that he would be personally targeted by those groups. [5] The Applicant submits that the RPD erred in its application of

section 96 of the Act by considering “generalized risk” and byapplying inconsistent standards of proof in its assessment of the risk pursuant to

section 96 of the Act. [6] The Applicant also alleges that the RPD ignored and misinterpreted evidence by relying solely on the UNHCR Guidelinesand the UK Home Office risk profiles. He argues that the RPD failed to consider contradictory evidence which suggested that failedasylum seekers are at risk of persecution in Sri Lanka and evidence that states release from detention was not determinative of the stateauthorities’ interest in the detainee; see the decisions in Orgona v. Canada (Minister of Citizenship and Immigration), 2001 FCT 346 andRayappu v.

Canada (Minister of Citizenship and Immigration), IMM-8712-11, October 24, 2012. [7] The Applicant further submits that the RPD made unreasonable credibility findings. [8] Finally, the Applicant argues that the RPD erred by not considering whether there were compelling reasons under subsection108(4) of the Act to not force the Applicant to return to Sri Lanka. [9] The Minister of Citizenship and Immigration (the “Respondent”) submits that the Applicant has not shown any reviewableerror.

He argues that the RPD properly considered “generalized risk” in its assessment of the Applicant’s risk under section 97(1) of theAct. [10] He further contends that the Applicant has confused the “legal test” with the “standard of proof”. He says that the Applicantmust establish, on a balance of probabilities, the necessary facts to meet the legal tests pursuant to

section 96 and subsection 97(1) of theAct, relying on the decision in Ferguson v. Canada (Minister of Citizenship and Immigration) (2008), 2008 FC 1067 , 74 Imm.L.R. (3d) 306 at paragraph 22. [11] The Respondent submits that the RPD does not need to refer to every piece of evidence before it; see the decision in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), (FC), 157 F.T.R. 35. He argues that theApplicant is dissatisfied with the RPD’s

interpretation of the documentary evidence but this does not amount to a reviewable error. [12] The Respondent submits that the RPD’s credibility findings are reasonable. [13] Finally, the Respondent argues that the Board correctly did not consider the “compelling reasons” exception pursuant tosubsection 108(4) of the Act since that exception only applies where the claimant had established a valid claim under

section 96 orsubsection 97(1). The RPD did not find the Applicant’s claim to be valid and accordingly, did not need to address subsection 108(4). [14] The first issue to be addressed is the applicable standard of review. The RPD’s selection of the burden of proof pursuant tosection 96 and subsection 97(1) of the Act is a question of law and is reviewable upon the standard of correctness; see the decisions inGopalarasa v. Canada (Citizenship and Immigration), 2014 FC 1138 and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph 44.

[15] The RPD’s credibility finding and assessment of evidence are reviewable on the standard of reasonableness; see the decisionin Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.). [16] Reasonableness is concerned with the justification, transparency and intelligibility of the decision-making process, andrequires the decision fall within a range of possible, acceptable outcomes defensible in respect of the facts and law; see the decision inDunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190 at paragraph 47. [17] The second issue to be addressed is the RPD’s selection of the legal test pursuant to

section 96 of the Act. [18] In order to succeed upon a Convention refugee claim, a claimant must establish the facts of his case on a balance ofprobabilities; see the decision in Chan v. Canada (Minister of Employment and Immigration), (SCC), [1995] 3 S.C.R.593. [19] A claimant must also show that there is more than a mere possibility he will be persecuted if returned; see the decision inAdjei v. Canada (Minister of Employment and Immigration), (FCA), [1989] 2 FC 680 (F.C.A.) at 682.

This burden ofproof may be described as “good grounds” or “reasonable chance”; see Adjei, supra at 683. [20] In my opinion, the RPD applied the proper legal test and burden of proof. The Applicant cannot succeed on this argument. [21] I am also not persuaded that the RPD erred in finding that the Tamil communities face a generalized risk of criminality; seethe decisions in Mohamed v. Canada (Minister of Citizenship and Immigration), 2015 FC 758 and Ramanathan v. Canada (Minister ofCitizenship and Immigration), 2015 FC 319. [22] The third issue is the RPD’s consideration of the documentary evidence.

It is not the role of a reviewing court to reweighevidence before the decision; see Khosa, supra at paragraph 61. A reviewing court should only intervene where it is clear that thedecision maker ignored key contradictory evidence; see the decision in Gopalarasa, supra at paragraphs 37 to 39. [23] The RPD’s assessment of the evidence before it was reasonable.

I am also not persuaded that the RPD ignored anycontradictory evidence. [24] In my opinion, it was reasonable for the RPD to find the Applicant’s description of his escape from a group of kidnappers tobe not credible. [25] Finally, did the RPD err in not applying subsection 108(4) of the Act which provides as follows: (4) Paragraph (1)(

e) does not apply to aperson who establishes that there arecompelling reasons arising out of previouspersecution, torture, treatment or punishmentfor refusing to avail themselves of theprotection of the country which they left, oroutside of which they remained, due to suchprevious persecution, torture, treatment orpunishment.

(4) L’alinéa (1)

e) ne s’applique pas si ledemandeur prouve qu’il y a des raisonsimpérieuses, tenant à des persécutions, à latorture ou à des traitements ou peinesantérieurs, de refuser de se réclamer de laprotection du pays qu’il a quitté ou horsduquel il est demeuré. [26] I agree with the Respondent’s submissions that the application of this subsection requires a finding by the RPD, pursuant toparagraph 108(1)(e), that the reasons for which the person sought refugee protection no longer exist; see the decision in Jaioro v.Canada (Minister of Citizenship and Immigration), 2014 FC 622.

The RPD, in this case, did not make such a finding. [27] In the result, this application for judicial review is dismissed. There is no question for certification arising. JUDGMENT THIS COURT’S JUDGMENT is that this application for judicial review is dismissed. There is no question for certification arising. "E. Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: imm-4602-15

STYLE OF CAUSE: MIRAJH DEVANANDAN V. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: toronto, ontario DATE OF HEARING: april 13, 2016 JUDGMENT AND reasons: HENEGHAN J. DATED: july 12, 2016 APPEARANCES : Jack Davis For The Applicant Christopher Crighton For The Respondent SOLICITORS OF RECORD : Davis & Grice Barristers and Solicitors Toronto, Ontario For The Applicant William F. Pentney, Q.C. Deputy Attorney General of Canada Toronto, Ontario For The Respondent