BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT
Pinard J.
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated August 19, 2005, wherein the Board found that the applicant is not a "Convention refugee" or a "person in need of protection" as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Kanagammah Sundaram (the applicant) is a 69-year-old Tamil woman who is a citizen of Sri Lanka.
[3] The Board determined that the applicant is not a credible and trustworthy witness. The Board noted that there were inconsistencies, omissions, and implausibilities in her evidence which rebutted the presumption of truthfulness. The Board found, in the alternative, that the applicant has an Internal Flight Alternative in Colombo.
[4] The applicant submits, inter alia, that the Board drew a negative finding because she failed to say at the Port of Entry that the Liberation Tigers of Tamil Eelam (LTTE) had asked her to 'act as a spy for them'. However, in this applicant's view, this was not a major concern of hers. Clearly, her fear of extortion was the central element of her claim, and this was consistently expressed. According to the applicant, the Board has taken a statement in her Personal Information Form and elevated it to a level of importance that she herself did not put on it.
[5] I agree. This clearly was not a crucial element of the applicant's claim, and it was therefore an error for the Board to require that she state this in the Port of Entry interview.
[6] In addition, according to the applicant, the Board notes that it does not find it plausible that the applicant would apply for her passport "and then return to the north if she was facing extortion and feared the LTTE would force her to act as a spy for them". However, the applicant submits that these findings result from a superficial appreciation of the evidence. The applicant sought out a passport to visit her daughter in Canada, not to flee the LTTE. At the time that she applied for her passport, the applicant had defied none of the LTTE's demands, and there were no outstanding extortion demands at that time, facts clearly misconstrued by the Board. The fear of being forced to act as a spy by the LTTE was of the army's reaction if problems resumed.
[7] I am inclined to agree with the applicant on this point. The Board seems to have ignored the applicant's evidence that her subjective fear arose after she arrived in Canada and spoke with her daughter and husband, and was informed that the LTTE had been looking for her and demanded that she report to them upon return to Sri Lanka. She never professed to have subjective fear prior to this point, and therefore, there is nothing implausible about the applicant returning to the north after applying for her passport so as to visit her daughter. She had no subjective fear of persecution at this point. I find that this conclusion of the Board was therefore patently unreasonable.
[8] The Board also relies on the applicant's failure to leave Sri Lanka earlier as an example of the applicant lacking a subjective well-founded fear of persecution in her native village. This is also a patently unreasonable conclusion because, as noted above, the applicant did not profess to have a subjective fear of persecution at this time.
[9] Finally, the Board noted that if it was wrong and the applicant was indeed extorted for a large sum of money from the LTTE and the LTTE was trying to force her to be a spy for them, then it was of the view that the applicant had an Internal Flight Alternative (IFA) in Colombo.
[10] In assessing her potential exposure to the LTTE in Colombo, the Board states that it is not persuaded that "the claimant would necessarily be open or vulnerable to extortion necessarily in Colombo just because of her age . . ." The applicant submits that the double use of the word 'necessarily' suggests that a higher standard than a mere possibility was used in assessing her risk.
[11] The jurisprudence is clear that the test for an IFA is, on the balance of probabilities, whether there is a serious possibility of the applicant being persecuted in all areas of the country. Though it is my opinion that the double-use of the word 'necessarily' was likely a slip of the decision-maker's hand, the word 'necessarily' should not have been used at all, as the test for an IFA is if there is a "serious possibility" of persecution in that area, and not whether there is 'necessarily' a risk of persecution. Since the standard of review for matters of law is correctness, and since I find that the Board has stated the test for an IFA incorrectly, it is my determination that the Board has erred on this point.
[12] In my view, the sum of the above errors made by the Board warrants the intervention of this Court. Therefore, the application for judicial review is allowed, the impugned decision is set aside and the matter is sent back to be reconsidered by a differently constituted Board in accordance with these Reasons.
Ottawa, Ontario
May 11, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5761-05
STYLE OF CAUSE: KANAGAMMAH SUNDARAM v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 1, 2006
REASONS FOR JUDGMENT: Pinard J.
DATED: May 11, 2006
APPEARANCES:
Mr. John Grice FOR THE APPLICANT
Mr. David Cranton FOR THE RESPONDENT
SOLICITORS OF RECORD:
Davis & Grice FOR THE APPLICANT
Barristers and Solicitors
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada