Date: 20050304
Docket: IMM-3072-04
Citation: 2005 FC 321
Ottawa, Ontario, this 4th day of March, 2005
Present: The Honourable Mr. Justice Mosley
BETWEEN:
MOHAMED DILSHAD NIYAS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Niyas is a 22-year-old Muslim Tamil from Columbo, Sri Lanka. He claims a well-founded fear of persecution by reason of his race or ethnicity.
[2] Mr. Niyas had a number of Tamil friends when he was in school. On three occasions, in January 2000, September 2000, and July 2001, he was detained along with one or more of these friends. He claims to have been beaten, questioned about the LTTE, and released within a few days on each occasion. He was not arrested in the 18 months leading up to his departure from Sri Lanka.
[3] After the cease-fire (February 2002), in November 2002, a Tamil friend's brother (Sankar) approached him about providing a safe house for the LTTE. Mr. Niyas refused and warned the man that he would report him to the police. Sankar then threatened his life if he did so. Sankar returned to the house to seek Mr. Niyas a number of times, sometimes accompanied by other LTTE members. Mr. Niyas' brother always claimed that he was not at home.
[4] After the second detention by the police, Mr. Niyas claims to have begun seeking a way to flee Sri Lanka. In his PIF, he claims that his family had insufficient funds to pay an agent until January 2003, when he left the country.
[5] Mr. Niyas arrived in Vancouver, then travelled to Toronto. He stayed in a mosque for two months, then travelled to Winnipeg. He claimed refugee status in late March 2003.
DECISION
[6] The RPD had serious concerns with Mr. Niyas' credibility because of the delay in leaving Sri Lanka and the delay in claiming protection once he was in Canada. However, the Board's finding that Mr. Niyas' claim is not objectively well-founded was the determinative one. The Board found that Mr. Niyas did not fit the profile of a person who would be in danger in Sri Lanka.
ISSUES
[7] Did the Board err in its findings
1. regarding delay in leaving and delay in claiming protection?
2. by ignoring evidence or misconstruing the evidence?
ARGUMENT & ANALYSIS
1. Delay
[8] Mr. Niyas submits that he gave a reasonable explanation for the delay in leaving Sri Lanka. He and his family were searching for an agent they could afford. Only after threats from the LTTE did he find an agent. He also submits that he did not know when he arrived in Canada that he could make a refugee claim. When he learned of the possibility, he made the claim.
[9] The respondent submits that the delay in claiming was a relevant consideration. There was no evidence that in the eighteen months before he left Sri Lanka the police showed any interest in Mr. Niyas. At the hearing, he testified that the reason for delaying his departure was that he did not have enough knowledge about going abroad (p. 620 tribunal record), not that he couldn't afford a smuggler. When he arrived in Canada, he did not claim for more than two months.
[10] It was open to the RPD to rely on the delay to question his fear and draw a negative credibility inference: Singh v. Canada (Minister of Citizenship and Immigration) 2003 FC 1146; Ilie v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1758 (T.D.); Sellathamby v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 839 (T.D.).
[11] I do not find that the Board erred in fact or law in its determinations concerning Mr. Niyas' delay in leaving Sri Lanka and claiming in Canada. They were not patently unreasonable, given the evidence before it.
2. Ignoring or misconstruing evidence
[12] Mr. Niyas submits that the Board erred in its decision to disbelieve the letter from his father because it did not believe that Tamils were arrested and detained after the cease-fire agreement was entered into. There was newer documentary evidence submitted by Mr. Niyas that indicated that Tamils had in fact been arrested and detained. The Board ignored this contradictory documentary evidence, so erred in discounting the letter.
[13] The Board acknowledged that the LTTE was a terrorist group that continued to commit terrorist acts even after the cease-fire. Mr. Niyas submits that just because the LTTE had made peace with the government does not mean that they would not still want to harm Mr. Niyas for failing to aid them.
[14] Mr. Niyas submits that the Board failed to recognize that none of his brothers had Tamil friends, so his situation is different from theirs.
[15] He also submits that while he is not a Muslim businessman, he is a Muslim Tamil, and the fact that the LTTE is kidnapping Muslims gives rise to the inference that he is at risk of being abducted and persecuted.
[16] The respondent submits that the Board is presumed to have considered all of the documentary evidence. It need not mention every piece of evidence. The applicant is really complaining about the weighing of evidence: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.); Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102; Brar v. Canada (Minister of Employment and Immigration) (1993), 152 N.R. 157 (F.C.A.).
[17] Though the documentary evidence shows that the LTTE continued to commit terrorist acts after the cease-fire, there was a major improvement and it was open to the Board to find that it was unlikely that the applicant would be a target. He was from Columbo. His brothers were not targeted. He did not fit the profile of someone who would be abducted by the LTTE. The conclusion was open to the Board.
[18] In my view, the Board did not make a patently unreasonable determination. While it might have been a better approach to directly address the newspaper article submitted by the applicant, I do not find that it unequivocally contradicts the Board's conclusions. The final line of the article reads: "The police Head Quarters informed that the police are arresting and inquiring suspected individuals only."
[19] This does not indicate that the arrests and detentions were arbitrary. Simply arresting and detaining a suspect is not arbitrary or even remotely persecutory if there is a good legal reason to do so. The Board found that there were "no reports of arbitrary arrests or detentions during 2002". This is a reasonable finding.
[20] The Board's conclusions about the likelihood that Mr. Niyas would be persecuted by the LTTE were reasonably open to it on the evidence. The Board need not accept that the Muslim businessmen were targeted for abduction because they were Muslim as opposed to because they were businessmen. It is a possible conclusion, but not the only rational one.
[21] Contrary to the applicant's submission, the Board did not base its decision on a lack of credibility or lack of subjective fear. Rather, it was based on the lack of an objective basis to conclude that the applicant would be subject to persecution if returned to Sri Lanka. In view of the foregoing, the application is dismissed. No questions are certified.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. No questions are certified.
" Richard G. Mosley "
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3072-04
STYLE OF CAUSE: MOHAMED DILSHAD NIYAS
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: December 15, 2004
REASONS FOR ORDER
AND ORDER BY : The Honourable Mr. Justice Mosley
APPEARANCES:
Gary Stern FOR THE APPLICANT
Aliyah Rahaman FOR THE RESPONDENT
SOLICITORS OF RECORD:
GARY STERN FOR THE APPLICANT
Barristers & Solicitors
Winnipeg, Manitoba
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Winnipeg, Manitoba