Ottawa, Ontario, June 19, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Jegathas Sivalingam's claim for refugee protection was rejected by the Refugee Protection Division of the Immigration and Refugee Board, which found that his story of persecution at the hands of the Liberation Tigers of Tamil Eelam was not credible.
[2] I am satisfied that this application for judicial review must be allowed, as the Board failed to assess the risk faced by Mr. Sivalingam in Sri Lanka, based upon the fact that he was a young Tamil male from the northern part of the country.
[3] Although the Board disbelieved much of Mr. Sivalingam's story, it did accept that he is a young Tamil male.
[4] The Board also refused to accept as genuine the birth certificate and National Identity Card produced by Mr. Sivalingam. It did, however, accept as authentic the military identification card provided by Mr. Sivalingam. This card indicates that Mr. Sivalingam comes from a town in the Jaffna Peninsula in northern Sri Lanka.
[5] It is well established in the jurisprudence of this Court that, pursuant to the provisions of sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c.27, the Board is under a legal obligation to assess the risk that would be faced by a young Tamil male from the north of Sri Lanka if he returned to Sri Lanka, independent of any issue as to his credibility: see, for example, Balasubramaniam v. Canada(Minister of Citizenship and Immigration), [2003] F.C.J. No. 1438 at ¶ 10, Satkunarajah v. Canada(Minister of Citizenship and Immigration) [2004] F.C.J. No. 28, at ¶ 5, and Mylvaganam v. Canada(Minister of Citizenship and Immigration), [2000] F.C.J. No. 1195, at ¶ 10.
[6] Having failed to do so, I am of the view that the Board committed a reviewable error, and the decision must be set aside.
Conclusion
[7] For these reasons, the application for judicial review is allowed. Neither party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for re-determination; and
2. No serious question of general importance is certified.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5919-05
STYLE OF CAUSE: JEGATHAS SIVALINGAM v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 15, 2006
REASONS FOR ORDER BY: Mactavish J.
APPEARANCES BY:
Ms. Preevanda K. Sapru FOR THE APPLICANT
Ms. Leanne Briscoe FOR THE RESPONDENT
SOLICITORS OF RECORD:
Max Berger
Barrister and Solicitor
MAX BERGER PROFESSIONAL
LAW CORPORATION
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT