Balasubramaniam v. Canada (Citizenship and Immigration), 2013 FC 698 (2013)

Parts:Balasubramaniam v. Canada (Citizenship and Immigration)
Reporting Judge:The Honourable Mr. Justice Scott
Docket Number:IMM-4243-12

Federal Court - Balasubramaniam v. Canada (Citizenship and Immigration)


Date: 20130621

Docket: IMM-4243-12

Citation: 2013 FC 698

Ottawa , Ontario , June 21, 2013

PRESENT: The Honourable Mr. Justice Scott









I. Introduction

[1] This is an application by Parthipan Balasubramaniam (the Applicant), pursuant to subsection 72(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 [ IRPA ], for judicial review of the decision of the Immigration and Refugee Board (the Board) rendered on April 5, 2012, wherein the Board concluded that the Applicant does not have a well-founded fear of persecution and is not a person in need of protection as contemplated by sections 96 and 97 of the IRPA .

[2] For the reasons that follow this application is dismissed.

II. Facts

[3] The Applicant is a 28 year old Sri Lankan citizen of Tamil ethnicity. He grew up in the Vavuniya district of Northern Sri Lanka. His parents, who are farmers, continue to live in the family home in Poonthoddam, Vavuniya, with his two brothers and his sister.

[4] In July 2008, the Applicant was abducted by people he alleges were members of the Eelam People’s Democratic Party [EPDP]. They came to his family home in a white van and brought him to an unknown location where they questioned, beat and tortured him for five or six days. The Applicant was injured to his eyesight as a result of the incident. He claims that his abductors suspected he had ties with the Liberation Tigers of Tamil Eelam [LTTE] because he had an uncle who had been forced to join the LTTE. The Applicant explained that he had never met this uncle and that he was killed in 2007.

[5] The Applicant’s two younger brothers were also said to have been taken and beaten by the EPDP in 2008. They have not experienced any problems since then.

[6] The Applicant also claims the Sri Lankan Army picked him up at his home in April 2009 and brought him to the Pampaimadu army camp. There they accused him of supporting and recruiting for the LTTE. When he denied the allegations, he was tortured. He was released after five days.

[7] The army allegedly visited the Applicant at his home on a number of other occasions after his detention. Twice he was taken back to the army camp to be interrogated. They told him that they still believed he was an LTTE supporter and that they could make him disappear.

[8] In March 2010, the Criminal Investigation Department [CID] purportedly came to his home in order to question the Applicant and his family on why the Army was interested in him. They allegedly told him that under the Emergency Laws, he could be detained for 10 years if they suspected he was connected to the LTTE. The family had no choice but to pay 100,000 Sri Lankan rupees to prevent his detention.

[9] In early December 2010, the Applicant claims his family home was once again invaded, this time by the Karuna group, who accused the Applicant of providing food and shelter to the LTTE with the help of his relatives living abroad. They told the Applicant that he was being watched and would be killed if they discovered any evidence that he was assisting the LTTE.

[10] After this last incident, the Applicant and his family decided that he was no longer safe in Sri Lanka. They sold a portion of their land to finance the C$30,000.00 cost of fleeing to Canada. With the assistance of an agent, the Applicant alleges he left Sri Lanka on January 25, 2011 and travelled with his own passport after bribing customs. The Applicant claims the agent took all his travel documents from him in Guatemala.

[11] The Applicant was detained in Mexico for four months and in the U.S.A. for two months before arriving in Canada in September 2011. He did not claim asylum in any of the countries he traveled through.

[12] The Applicant contends that members of the Karuna group visited his family after his departure for Canada. Upon discovering that the Applicant had fled the country, they beat his father in front of his mother and then detained him at their camp. His mother had to arrange for someone to pay 50,000 rupees in exchange for his release. Members of the Karuna group allegedly continue to harass the Applicant’s family and neighbours over his whereabouts. The Applicant alleges to be at greater risk of harm upon return now that he has fled and claimed refugee status in Canada.

III. Impugned decision

[13] The Board determined that the Applicant is neither a Convention refugee nor a person in need of protection as contemplated by sections 96 and 97 of the IRPA. The determinative issues were the credibility of the evidence adduced and the objective basis of the Applicant’s prospective fear.

A. Negative credibility findings

[14] The Board based its negative credibility findings on a number of observations:

(a) The Board found that information provided by the Justice of the Peace’s [JP] letter regarding the July 6, 2008 abduction and the motive and timing of the Applicant’s departure were inconsistent with the narrative in his Personal Information Form [PIF]:

(i) The JP’s letter stated that the incident happened on July 6, 2008 and was committed by “unknown persons”, while the PIF did not provide a specific date and specified the EPDP as the perpetrators;

(ii) Although the Applicant stated that the JP knew his family personally, including all of the Applicant’s experiences, the letter did not provide any details about the incidents involving the army, the CID or members of the Karuna group;

(iii) The JP’s letter did not mention that two and a half years lapsed between the July 6, 2008 abduction and the Applicant’s decision to flee abroad, but could imply that the Applicant made his decision to go abroad soon after the July 6, 2008 incident; and

(iv) Contrary to the Applicant’s PIF, the JP’s letter specifies that the Applicant fled after having more problems with the same group of unknown persons that abducted him on July 6, 2008.

(b) The medical certificate also indicates that the abduction occurred on July 6, 2008 and was perpetrated by “unknown persons”;

(c) The Applicant failed to properly explain the discrepancies between his PIF, the JP’s letter and the medical certificate;

(d) The Applicant’s explanation for why the JP only mentioned the July 2008 incident in his letter was not compelling. The Board found that the JP could have written about the other incidents without implicating the army;

(e) The Applicant said his family went to the JP for all their needs but was unable to provide any examples of other situations when they had sought his assistance;

(f) While the Applicant indicated that his family may have been suspected of having ties with the LTTE because his uncle had been forced to join them, he failed to adequately explain why he was the only member of his family being forced to flee;

(g) The Board found that the if he had been arrested on suspicion of helping the LTTE he would not have been released from detention unless the army was satisfied he had no LTTE ties;

(h) The Applicant was unable to provide any corroborative objective evidence regarding his alleged detentions and torture by the army, the CID or the Karuna group purported to have occurred after the July 2008 incident. The Board gave little probative weight to the Applicant’s mother’s letter:

(i) Due to credibility concerns regarding the Applicant and;

(ii) The absence of details and of any medical or other corroborative documents regarding the attack on the Applicant’s father.

(i) The Board was not provided with a passport or documents related to arrangements for his travel to Canada...

To continue reading