Date: 20050914
Docket: IMM-8424-04
Citation: 2005 FC 1264
BETWEEN:
BALASINGAM FRAN SUPIRAMANIAM
MARY CONSTANCE JEYARATNAM
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
[1] The Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) rejected the Applicant's and his wife's claims for refugee status and protection. It held that the Applicants did not have a well-founded claim of persecution or harm in today's Sri-Lanka and that they had an internal flight alternative (IFA) in Colombo. This is the judicial review of that RPD decision.
BACKGROUND
[2] The Applicant is a 65 year old male citizen of Sri Lanka who claimed the need for protection based on his Tamil ethnicity and his imputed political opinion being that he supported the LTTE. The Applicant's wife joins in the claim. Their three children live outside Sri Lanka; one in Canada, two in the U.K.
[3] A central theme of the Applicant's claim was his fear of extortion. He claimed that since 1990 when Jaffna came under the control of the LTTE, he and his family were extorted to make contributions to the LTTE. He was also forced to pass on information between LTTE members and to serve as a lookout against the army.
[4] The alleged extortion was a major influence in the Applicant's reason for leaving Sri Lanka. It was also the major reason for his fear of being returned to Sri Lanka, because he had three children outside Sri Lanka who were seen by the LTTE as a likely source of funds.
[5] In the RPD's decision, the Panel noted the changed circumstances in Sri Lanka. The Panel considered the Applicant's fear against the background of the present situation in Sri Lanka. It found that the work the Applicant had been required to do - act as a clandestine courier - was not relevant to today's circumstances since the LTTE now controlled Jaffna.
[6] The RPD then considered the Applicant's former circumstances of having lived in Colombo, the existence of a substantial Tamil community in that city and his relative self-sufficiency. The RPD concluded that he had a viable IFA in Colombo.
DETERMINATION
[7] In the RPD's reasons, the Panel never directly addresses the primary basis for the Applicant's claim - fear of being extorted. The Panel refers to his other activities on behalf of the LTTE, that of a clandestine courier, and dismissed it as a basis for a claim.
[8] I cannot accept the Respondent's argument that the general finding was of "no credible evidence that the Applicant had a 'well-founded fear'" is a sufficient reference to the fear of extortion.
[9] While the IRB is not required to specifically address each and every aspect of a claim, it must address the central basis of a claim with sufficient detail for a party to know why the claim was dealt with in a particular manner.
[10] In this instance the RPD addressed the secondary basis for the claim, being the other activities on behalf of the LTTE. The absence of a reference to the primary basis for the claim, being fear of extortion, leaves open the real likelihood that it was forgotten.
[11] The more important the particular evidence is, the greater the obligation on a decision-maker to address it. The RPD failed in its obligation to consider the relevant parts of the claim and/or to give proper reasons for dismissing the claim.
[12] The Respondent contends that, whatever the problems may be in respect of the RPD's decision on the merits of the claim, the decision cannot be overturned because the IFA analysis is determinative.
[13] While the Applicant's evidence against an IFA in Colombo may be weak particularly its reliability on a freelance journalist's report as "expert evidence", the RPD's consideration is incomplete.
[14] Without a consideration of the central basis for the claim and without considering whether this fear of extortion may be relevant if the Applicant were to live in Colombo, the RPD cannot conclude that Colombo is a "safe haven". If the RPD had rejected the claim of extortion on a proper basis, then its IFA finding might be sustainable.
[15] In my view there must be some consideration of an unrejected basis of a claim in the context of an IFA. In order for the RPD's decision on Colombo as an IFA to be "bullet-proof" - as claimed by the Respondent - the RPD must conclude that the fear of extortion would not be reasonably based if the Applicant were to live there. Or in other words, that Colombo is a safe haven from extortion from the LTTE.
[16] Therefore the RPD's IFA conclusion cannot be considered as determinative of the Applicant's claim.
[17] For these reasons, this application for judicial review will be granted, the RPD's decision quashed and the matter remitted for determination by a differently constituted panel of the IRB.
[18] No question will be certified.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8424-04
STYLE OF CAUSE: BALASINGAM FRAN SUPIRAMANIAM and MARY CONSTANCE JEY ARATNAM v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 27, 2005
REASONS FOR ORDER: Phelan J.
DATED: September 14, 2005
APPEARANCES:
Kumar S. Sriskanda FOR THE APPLICANTS
John Provart FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Kumar S. Sriskanda
Barrister & Solicitor
Scarborough, Ontario FOR THE APPLICANTS
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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