Date: 20061030
Docket: IMM-503-06
Citation: 2006 FC 1305
Ottawa, Ontario, October 30, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
MAYUTHARAN
KANAGARATNAM
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
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.
“Michael
A. Kelen”
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