Date: 20040609
Docket: IMM-1979-03
Citation: 2004 FC 819
Ottawa, Ontario, this 9th day of June, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
PONNAMPALAM (PONNAMBALAM) PONNUTHURAI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Ponnampalam Ponnuthurai fled Sri Lanka in 2002 after having been forced to pay extortion money and bribes to both the Liberation Tigers of Tamil Eelam (LTTE) and the Sri Lankan Army. He worried that he might be harmed when his ability to pay ran out, so he came to Canada and made a refugee claim. A panel of the Immigration and Refugee Board dismissed it.
[2] Mr. Ponnuthurai argues that the Board erred when it found that extortion does not amount to persecution. He asks me to overturn the Board's decision and order a new hearing. I agree that the Board erred and, therefore, will grant this application for judicial review.
I. Issues
[3] Mr. Ponnuthurai raised two main issues:
1. Did the Board err when it found that the extortion experienced by Mr. Ponnuthurai did not amount to persecution?
2. Should the Board have considered whether Mr. Ponnuthurai's life was at risk, and whether he was likely to suffer cruel and unusual treatment or punishment, if he were returned to Sri Lanka?
[4] In light of my finding on the first issue, I decline to address the second.
II. Analysis
A. Did the Board err when it found that the extortion experienced by Mr. Ponnuthurai did not amount to persecution?
[5] The Board recognized that the LTTE and the Sri Lankan Army extorted money from Mr. Ponnuthurai. However, it stated that the LTTE's conduct amounted to mere harassment. As for the Army's demands, the Board found that Mr. Ponnuthurai simply had to pay bribes in order to have his residence pass processed and extended. In summary, the Board concluded that Mr. Ponnuthurai was "an opportunistic extortion victim and not a target for persecution for a Convention ground".
[6] It is true that extortion, in itself, does not necessarily constitute persecution. One must consider all the facts and circumstances to determine whether a refugee claimant has been the victim of harassment or discrimination rather than persecution. The amounts involved, the number of demands and the consequences of not paying will all be important factors to consider: Sinnathamby v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1160 (T.D.) (QL); Shanmugalingam v. Canada (Minister of Citizenship and Immigration) 2002 FCT 767, [2002]_F.C.J. No. 1035 (T.D.) (QL).
[7] Here, the Board gave some explanation why the Army's demands did not amount to persecution. It found that Mr. Ponnuthurai had to bribe officials on two occasions in order to get his residence passes extended. There is no reason to question this conclusion.
[8] The situation is different regarding the LTTE's extortion. Mr. Ponnuthurai told the Board, which generally accepted his testimony, that the LTTE detained him and his wife for two weeks in 1994. They were released after they paid 200,000 rupees and handed over their house and property. In 1997, the LTTE again demanded money. This time, it asked for 500,000 rupees, and threatened to detain Mr. Ponnuthurai and his wife again for a long time if they did not pay. Because they did not have the money to satisfy the LTTE's demands, Mr. and Mrs. Ponnuthurai decided to try to get out of the country. Mr. Ponnuthurai explained that families with relatives abroad tended to be singled out for extortion. All of the six Ponnuthurai children lived outside Sri Lanka. Five of them obtained refugee status in Canada or Europe in the early 1990s.
[9] In my view, it was incumbent on the Board to consider this evidence before concluding that Mr. Ponnuthurai's experiences of extortion and its potential consequences could not give rise to a reasonable fear of persecution. Most of the facts set out in the preceding paragraph were not cited by the Board.
[10] The Board also noted that the Sri Lankan authorities have been in control of the Jaffna peninsula since 1995 and that the incidence of extortion by the LTTE has declined. Counsel for the Minister argued that currently the most serious problem in northern Sri Lanka is not extortion, but forced recruitment of young people by the LTTE. Still, he conceded that the documentary evidence shows that extortion remains a problem, although it may be a lesser problem than it was a decade ago.
[11] It was clearly open to the Board to find that the risk of extortion was no longer serious. But, in doing so, it should have considered the evidence and circumstances before it, including the possibility that Mr. Ponnuthurai might once again be singled out because of his many family connections outside of Sri Lanka.
[12] I must, therefore, grant this application for judicial review and order a different panel of the Board to reconsider Mr. Ponnuthurai's claim. Neither party proposed a question of general importance for me to certify and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is allowed;
2. The applicant is entitled to a new hearing before a different panel;
3. No question of general importance is stated.
"James W. O'Reilly"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1979-03
STYLE OF CAUSE: PONNAMPALAM (PONNAMBALAM) PONNUTHURAI v.THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 1, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: The Honourable Mr. Justice O'Reilly
APPEARANCES:
Mr. Jegan Mohan FOR THE APPLICANT
Mr. Robert Bafaro FOR THE RESPONDENT
SOLICITORS OF RECORD:
JEGAN MOHAN FOR THE APPLICANT
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada