Date: 20040113
Docket: IMM-5200-03
Citation: 2004 FC 37
OTTAWA, Ontario, this 13th day of January, 2004
Present: THE HONOURABLE MR. JUSTICE MICHAEL KELEN
BETWEEN:
SANTHAKUMAR SATKUNARAJAH
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board") dated June 19, 2003, wherein the Board determined that the applicant is not a Convention refugee because the Board did not believe the claimant's evidence.
FACTS
[2] The applicant is a 24 year old Tamil citizen of Sri Lanka who claims a well-founded fear of persecution on the basis of his ethnicity, political opinion and membership in a particular social group - namely a young Tamil male from the north of Sri Lanka. He alleges to be a person in danger of torture within the meaning of Article 1 of the Convention Against Torture, and a person who faces risk to life, or cruel and unusual treatment in Sri Lanka.
[3] The applicant came to Canada on August 20, 2001 and made a refugee claim the following day. He bases his claim on the following allegations: that his family was subjected to extortion by the Liberation Tigers of Tamil Eelam ("Tigers") and that at various times he was forced to do manual labour for the Tigers. In May 1997 he was arrested by the army and interrogated about his connections with the Tigers; he was threatened by the army and his house was searched. In December 1999 he was arrested again and beaten when he was unable to provide information about the Tigers; he was released three days later upon payment of a bribe. In May 2001 the Tigers attempted to recruit him three times, and threatened him. At this time he decided to flee Sri Lanka.
[4] The applicant's claim before the Board was rejected on grounds of credibility. The Board found the applicant's testimony to be "a stream of inconsistencies, adjustments, and evasions".
ANALYSIS
[5] Counsel for the respondent conceded at the outset of the hearing that the Board did not assess the risk to the applicant if returned to Sri Lanka, even if the applicant's personal account of what happened to him is not credible. This Court has repeatedly held that the Board is under a legal obligation pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 ("IRPA") to assess the risk to a young Tamil male from the north of Sri Lanka if returned to Sri Lanka, regardless of his credibility. See Balasubramaniam v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1438 at paragraph 10.
[6] From the Board's reasons it is obvious that even though the Board doubted the credibility of the applicant, it did not doubt that the applicant is a young Tamil male who would be a likely candidate for recruitment into the Tigers. In my opinion this case presents the situation faced by Gibson J. in Mylvaganam v. Canada (MCI), [2000] F.C.J. No. 1195 (QL) where he states at paragraph 10:
Even if it rejected outright, as it did, the applicant's own alleged experience of persecution, in its analysis in support of its decision in this matter, it does not appear to have rejected the applicant's identity as a young Tamil male from the north of Sri Lanka. Having accepted this identity, the CRDD then ignored the substantial evidence before it that a person such as this applicant might well be subjected to persecution if he were required to return to Sri Lanka and that therefore he might very well have had not only a subjective fear of persecution but also potentially a well-founded objective basis to that fear.
[7] I find that the Board failed to consider the possibility of risk that a young man of the applicant's profile would face upon return to Sri Lanka. Indeed it does not assess that risk at all, and erred in a reviewable manner. See Jeyaseelan v. Canada(MCI), 2002 FCT 356 (T.D.); and Kamalanathan v. Canada (MCI).
[8] For the above reasons this application for judicial review is allowed. The matter is to be remitted to a differently constituted panel for redetermination.
[9] The parties and the Court agree that this application does not raise a serious question of general importance for certification.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is allowed and the matter referred back to the Board for a new hearing by a differently constituted panel.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5200-03
STYLE OF CAUSE: Santhakumar Satkunarajah v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, ON
DATE OF HEARING: January 8, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE KELEN
DATED: January 13, 2004
APPEARANCES:
Micheal Crane For Applicant
David Tyndale For Respondent
SOLICITORS OF RECORD:
Micheal Crane For Applicant
Barrister and Solicitor
Toronto, ON
Morris Rosenberg For Respondent
Deputy Attorney General of Canada
FEDERAL COURT
Date: 20040113
Docket: IMM-5200-03
BETWEEN:
SANTHAKUMAR SATKUNARAJAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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