Ottawa, Ontario, August 2, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant’s refugee application was denied by the Immigration and Refugee Board (Board) because of concerns about credibility and the availability of an internal flight alternative (IFA). This is the judicial review of the Board’s decision.
II. Facts
[2] The Applicant is a male Tamil citizen from Northern Sri Lanka in his mid-sixties. He based his refugee claim on fear of persecution from both the Sri Lankan authorities and from the LTTE (Tamil Tigers).
[3] In his Personal Information Form (PIF) the Applicant recites a history of threats and extortion from both groups. As a result, three of his four children left Sri Lanka. He remained hopeful that peace would return to his country.
[4] The Applicant further claimed that his problems recommenced two years after he hired an individual (Mohan) to work in his restaurant, who was suspected of being an affiliate of the Tamil Tigers. As a result, he claimed, the Sri Lankan army suspected him of being a Tamil Tiger supporter.
[5] The Board questioned the credibility of his story. It found it incredible that the Applicant would hire a young Tamil of military age, a person of interest to both the army and the Tamil Tigers, particularly given his alleged past difficulties.
[6] The Board also found that the Applicant had an IFA in Colombo. He was an experienced business man who had re-established his businesses on numerous occasions. The Board found that he could find the necessary funds to start a business and that none of the other alleged impediments to an IFA had been established.
III. Analysis
[7] As to issues of credibility, the standard of review of patent unreasonableness has been well-established in Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315. As to the issue of a viable IFA, the inquiry is a factual one which, if made on a proper analysis of the materials before it, this Court has held the standard of review also to be patent unreasonableness. (See Sarker v. Canada (Minister of Citizenship and Immigration), 2005 FC 353, [2005] F.C.J. No. 435 (QL))
[8] The Applicant says that the Board failed to address his fear of extortion. He further relies on my judgment in Supiramaniam v. Canada (Minister of Citizenship and Immigration), 2005 FC 1264, [2005] F.C.J. No. 1525 (QL) where a male Tamil in his sixties feared extortion by the LTTE because he had children outside Sri Lanka and therefore he was deemed to have money to support the LTTE.
[9] The difficulty with the Applicant’s argument is that extortion was not the basis of his fear of persecution. The core of his claim was that he had hired a young Tamil and he would be viewed as a supporter of the Tamil Tigers – not that the Tamil Tigers would extort money from him.
[10] This factual basis is a principal reason for distinguishing this case from that of Supiramaniam, above, where extortion was at the very heart of the refugee claim.
[11] The Board had reasonable grounds on which to question the credibility of the claim. The submission that reverse order questioning prevented the Applicant from making out his case fully is not sustainable on the facts here. The Applicant chose, starting with his PIF, to lay the emphasis on his fear flowing from the hiring of Mohan. That ground was underscored in his testimony. The Applicant cannot recast his case at the judicial review stage.
[12] In respect of the IFA, the Applicant attempted to rebut the presumption in favour of an IFA on the grounds that he could not find the funds to re-establish himself in Colombo which the Board did not reasonably accept given his past experience. He did not base his claim of no IFA on the grounds of extortion.
[13] Lastly, the Applicant says that the Board did not do a separate s. 97 Immigration and Refugee Protection Act analysis. While the Board did not refer specifically to s. 97 (nor is it required), the Board did do what was required – it considered the s. 97 grounds. Its penultimate paragraph held:
Further, the panel finds that there is not a reasonable chance or serious possibility that the claimant will be persecuted, if he returns to Sri Lanka.
[14] Therefore, this application for judicial review will be dismissed. There is no question for certification.
JUDGMENT
IT IS ORDERED THAT this application for judicial review is dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6088-05
STYLE OF CAUSE: KANDIAH SIVANATHAN
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 11, 2006
APPEARANCES:
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Mr. Kumar Sriskanda
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Ms. Judy Michaely
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SOLICITORS OF RECORD:
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MR. KUMAR SRISKANDA Barrister & Solicitor Toronto, Ontario
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
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