Ottawa, Ontario, October 30, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
and
CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant, a Sri Lankan Tamil, claimed refugee status and applied for protection on the basis of his fear of the Liberation Tigers of Tamil Eelam (LTTE) and the Sri Lankan army. This is an application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (the RPD) dated January 10, 2006 rejecting the application for protection.
Background
[2] The applicant stated before the RPD that he feared the Sri Lankan army because he would be suspected by the army of supporting or being a member of the LTTE if he left the area of his country controlled by the LTTE. He also stated that he feared the army because he was arrested and mistreated by the army in 1998.
Issues
[3] This case raises the following issues:
1. Did the Board fail to consider relevant evidence?
2. Did the Board apply the wrong legal test to determine whether the applicant had a well-founded fear of persecution?
3. Did the Board err in failing to consider a United Nations document which states that there is no IFA in Sri Lanka for Tamils fleeting the LTTE?
Analysis
Issue No. 1: Did the Board fail to consider relevant evidence?
[4] The applicant submits that the Board failed to consider important evidence about the applicant’s fear of the LTTE. The evidence is that:
1. the LTTE forced the applicant to do manual labour from time to time for eight years before the applicant left Sri Lanka for Canada. This was part of his Personal Information Form (PIF), and it was also contained in the summary of facts prepared by the RPB as background for the hearing. The RPD report stated:
1.
During the next several years, he was taken by the Tigers on a number of occasions and forced to work for them;
2. two LTTE Tigers came to the applicant’s home in May 2004 and pressured him to join the LTTE. The applicant resisted because his mother paid them a bribe so that they would leave. However, the applicant’s friend and neighbour was taken by the LTTE Tigers at that time; and
3. after he arrived in Canada his younger brother was abducted from their home by the Tigers. A bribe was paid, and his younger brother has now left Sri Lanka for his safety.
[5] The Court concludes that this was important and relevant evidence which the RPD should have been considered before finding that the applicant’s fear of recruitment by the LTTE was implausible. This failure to consider relevant evidence constitutes an error of law, which the Court reviews on a standard of correctness.
Issue No. 2: Did the RPD apply the wrong legal test to determine whether the applicant had a well-founded fear of persecution?
[6] The applicant argues that the RPD erred in finding that the applicant was not a Convention refugee because he would not face a “reasonable” risk of persecution. The RPD rejected the applicant’s testimony concerning his alleged persecution by the army or LTTE. At pages 5-6 of its reasons, the RPD stated:
The claimant was never involved in politics. He never had problems with the police, and I rejected his allegation that he was arrested by the army in the past. He was not a member of the LTTE or of any other Tamil group. He is not a high-profile rebel wanted by the army or by the police. Based on the documentary evidence, I do not consider that, in the present circumstances, people with the claimant’s profile face a reasonable risk of persecution by the Sri Lanka army, by the Tamil groups controlled by the government, like People’s Liberation Organization of Tamil Eelam (PLOTE), or by the police because of their Tamil nationality. I do not consider it either that people with the claimant’s profile would face a serious risk of torture, a risk to their lives, or a risk of cruel or unusual treatment of punishment in Sri Lanka.
[Emphasis added]
[7] The importance of expressing correctly the legal test for establishing a risk of persecution was explained by Mr. Justice O’Reilly in Alam v. Canada (Minister of Citizenship and Immigration), 2005 FC 4; 41 Imm. L.R. (3d) 263. At paragraph 8, O’Reilly J. describes the burden of proof placed on claimants:
[…] Obviously, claimants must prove the facts on which they rely, and the civil standard of proof is the appropriate means by which to measure the evidence supporting their factual contentions. Similarly, claimants must ultimately persuade the Board that they are at risk of persecution. This again connotes a civil standard of proof. However, since claimants need only demonstrate a risk of persecution, it is inappropriate to require them to prove that persecution is probable. Accordingly, they must merely prove that there is a “reasonable chance”, “more than a mere possibility” or “good grounds for believing” that they will face persecution.
[Emphasis added]
[8] The RPD’s use of the expression “reasonable risk of persecution” at page 6 of its reasons does not state the correct legal test under section 96 of the Immigration and Refugee Protection Act. After analyzing the decision in its entirety, I find that the reasons disclose that the RPD also applied the wrong test at page 3 of it decision:
Consequently, I conclude that the claimant has not established that should he go back to his village, allegedly under LTTE control, he would face a serious risk of forced recruitment by the LTTE.
This conclusion also misstates the test as requiring the applicant establish that he would face a serious risk of forced recruitment by the LTTE. The correct burden on the applicant is less, it is to establish “a reasonable chance”, “more than a mere possibility”, or “good grounds for believing” that he would face persecution. Accordingly, the RPD erred in law in this regard, which error is subject to the correctness standard of review.
Issue No. 3: Did the Board err in failing to consider a United Nations document which states that there is no IFA in Sri Lanka for Tamils fleeting the LTTE?
[9] In view of the Court’s conclusions with respect to the first two issues, it is not necessary to consider this issue.
Conclusion
[10] For the foregoing reasons, the application for judicial review must be allowed.
[11] Both parties advised the Court that they do not consider that this case raises a serious question of general importance which ought to be certified. The Court agrees.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
This application for judicial review is allowed, the decision of the RPD dated January 10, 2006 is set aside, and the matter is referred to another panel of the RPD for re-determination.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-503-06
STYLE OF CAUSE: MAYUTHARAN KANAGARATNAM v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: OCTOBER 25, 2006
APPEARANCES:
Tamrat Gebeyehu FOR RESPONDENT
SOLICITORS OF RECORD:
Micheal Crane
Barrister & Solicitor FOR APPLICANT
Toronto, Ontario
John H. Sims, QC FOR RESPONDENT
Toronto, Ontario