Date: 20040528
Docket: IMM-5320-03
Citation: 2004 FC 784
OTTAWA, Ontario, this 28th day of May 2004
PRESENT: THE HONOURABLE MR. JUSTICE PHELAN
BETWEEN:
PONNI PILLIYAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This application for judicial review is filed by a 66 year old Tamil from Sri Lanka who is widowed. She was crippled by Sri Lankan soldiers, threatened by Tamil Tigers and has lost one child who was murdered by peacekeeping forces.
Background
[2] The Applicant made claims under sections 96 and 97 of the Immigration and Refugee Protection Act ("the Act"). Aside from the above facts, the Applicant has two children who reside in Canada; one is a Canadian citizen, the other is a permanent resident. In addition to the daughter who was killed in Sri Lanka, another daughter is in Malaysia.
[3] The Applicant specifically claimed the following facts as basis for her claim:
a) One child was arrested by peacekeeping forces, remained in their custody and was found dead three days later near her home.
b) The Tamil Tigers tried to recruit one of her children to their ranks but when that was unsuccessful, they tried to extort money and jewelry from the Applicant.
c) The Applicant was confronted by the Sri Lankan army and Tamil militants assisting the army, When advised that the Applicant's son had been sent away by her, she was beaten with a rifle butt and left crippled.
d) The Applicant and a daughter fled her home during the fighting because they were in the midst of the fighting area.
e) Upon the break out of peace, they returned where they again encountered demands from the Tigers for support and received threats to their life and safety because of their refusal to provide support.
[4] The Board's rather paltry reasons for refusing the application contain the following key findings:
- That very little happened to the Applicant after her children had left Sri Lanka except for the "unfortunate incident" when she was beaten with a rifle butt. This is the incident which crippled her.
- That the panel had some problems with her credibility due not to deceit, but due to memory.
- That "there is a basis of protection for senior citizens in Sri Lanka that is relatively comfortable for a Third World State".
Analysis
[5] I concur with the Respondent that on the findings of fact the standard of review is patent unreasonableness. However, on issues of mixed law and fact the standard is reasonableness and on legal issues including the applicable legal criterion, the standard is correctness.
[6] On the facts, the Immigration and Refugee Board ("IRB") made no mention of the Applicant's fear of the Tigers or of the events involving Tigers despite the fact that it is fear of the Tigers and risk of reprisals which is the basis of her application.
[7] The Board's dismissive comments suggesting that a crippling rifle beating by army officials of a 60 year old woman is merely an "unfortunate incident" is a patently unreasonable conclusion as to the nature and significance of the event.
[8] The Board's decision is devoid of any real analysis of either the facts or the legal issues.
[9] The Board's finding of "some problems with her credibility" fails to show the relevance of any memory difficulty. There is no suggestion that the Applicant's memory was somehow deficient with respect to any of the facts upon which her fear and risk of harms is based.
[10] As to the finding of state protection that "there is a basis for protection for senior citizens in Sri Lanka that is relatively comfortable for a Third World state", I find no legal relevance or factual basis in the record for such a conclusion.
[11] The criterion of "basis for protection", particularly as it is linked to some kind of comparative with other countries, is not the legal test under either section 96 or section 97 of the Act. The Board essentially ignored the issue of adequate or effective state protection.
[12] The Board seemed to recognize that there was a need for protection without articulating what gave rise to the need for protection.
[13] The Board seems to have confused living conditions with state protection.
[14] The Board also failed to consider the applicability of section 97 of the Act which is in itself an error of law. Yorulmaz v. Canada (Minister of Citizenship and Immigration) 2004 FC 128. This is not an instance where the reasons for a section 96 finding of the Act can be clearly seen to also include a section 97 finding of the Act.
[15] This application for judicial review will be granted.
ORDER
THIS COURT HEREBY ORDERS THAT:
1. The application for judicial review is granted, the Board's decision is quashed and the matter is remitted to the Board for redetermination by a differently constituted panel.
2. No question will be certified.
(s) "Michael L. Phelan"
J.F.C.
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
DOCKET: IMM-5320-03
STYLE OF CAUSE: Ponni Pilliyan v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 17, 2004
REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice Phelan
DATED: May 28, 2004
APPEARANCES:
Mr. Micheal CraneFOR THE APPLICANT
Ms. Alexis SingerFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Micheal CraneFOR THE APPLICANT
Toronto, Ontario
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada