Date: 20100823
Docket: IMM-6640-09
Citation: 2010 FC 834
Ottawa, Ontario, August 23, 2010
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
PACKINATHAN,
LINDAN LORANCE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant, a Tamil male, is a citizen of Sri Lanka. He arrived
in Canada in March 2009 and claimed protection, under s. 96 and 97(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), on the basis of
his fears of the Sri Lankan Army, police, paramilitaries and the Liberation
Tigers of Tamil Eelam (LTTE).
[2]
In
a decision dated December 2, 2009, a panel of the Immigration and Refugee
Protection Board, Refugee Protection Division (the Board) determined that the
Applicant was neither a Convention refugee nor a person in need of protection.
The Applicant seeks judicial review of the Board’s decision.
[3]
The
Board’s decision rests on three key findings.
·
The
Applicant, who was originally from the north of Sri Lanka, lived in Colombo, in
the south of Sri Lanka, for two periods of time – from 1997 to 2002 and from
2006 until he left the country in 2009. The Board noted that the Applicant,
while in Colombo, experienced
only a few problems (such as the occasional police check) and had not been
physically abused. Further, the Board noted that the Applicant’s wife and
children remain in Colombo. On this basis, the Board concluded that the
Applicant’s fear was not “well founded particularly with respect to living in Colombo”.
·
The
Board concluded that the Applicant failed to demonstrate the existence of a
subjective fear, on the basis that he did not, during a two-hour stopover, make
a refugee claim in Switzerland.
·
The
Board determined that the Applicant had a viable internal flight alternative
(IFA) in Colombo.
[4]
I
have difficulties with all three of these conclusions and will allow this
application for judicial review.
[5]
The
issues raised by this application for judicial review are as follows:
1.
Did
the Board err by finding that there was a lack of subjective fear on the basis
of the Applicant’s failure to claim refugee protection in Switzerland?
2.
Did
the Board err by failing to have regard to the evidence?
[6]
The
decision of the Board is reviewable on the standard of reasonableness. On this
standard, the
Court should not intervene where the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47). In addition, the Court may grant relief
if it is satisfied that the tribunal made its decision without regard for the
material before it (Federal Courts Act R.S.C. 1985, c. F-7, s.
18.1(4)(d)).
[7]
To
establish a successful claim to refugee status, a claimant must demonstrate the
existence of both a subjective and objectively well-founded fear of
persecution. It is quite proper for the Board to take the claimant’s actions
into account when assessing the presence or absence of subjective fear. A
failure to make a refugee claim in a third country may raise doubt that a
refugee claimant has a subjective fear (see, for example, Khan v. Canada (Minister of
Citizenship and Immigration), 2005 FC 403, [2005] F.C.J. No. 501 (QL)).
However, where a claimant had always planned to come to Canada, and merely was
in transit during a stopover in a third country, the Court has held that such a
situation does not undermine the subjective fear of persecution (Ilunga v.
Canada (Minister of Citizenship and Immigration), 2006 FC 569, [2006]
F.C.J. No. 748 (QL)).
[8]
In
this case, the Board’s finding of a lack of subjective fear appears to have
been based solely on the fact that the Applicant had not claimed refugee
protection during a two-hour stopover in Switzerland. Indeed, it
would be impossible to come by air, from Sri Lanka to Canada, without a
stopover in another country. On the facts before me, it is evident that the
Applicant was, at all times, in transit to Canada, where he
intended to claim refugee protection. In my view, the Board’s conclusion on
this evidence was unreasonable.
[9]
The
Board must have regard for all of the evidence before it. That does not mean
that every piece of evidence must be separately and explicitly referenced (see,
for example, Hassan v. Canada (Minister of Employment
and Immigration) (1992), 147 N.R. 317, [1992] F.C.J. No. 946 (F.C.A.) (QL).
In many cases, a general statement that the Board has considered all of the
evidence will suffice. However, the more important the evidence to the
Applicant’s case that is not mentioned in the Board’s reasons, the more willing
a court may be to infer that the Board made its findings without regard to the
evidence (Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration) (1998), 157 F.T.R. 35, [1998] F.C.J. No. 1425 (QL) at para. 17
(Cepeda-Gutierrez)).
[10]
The
Board’s reasons – both in respect of well-founded fear and the possible IFA –
rest on the situation for a Tamil male in Colombo. In coming
to its conclusions on both issues, the Board has not referred to the extensive
evidence regarding widespread, arbitrary arrests, detention and mistreatment of
Tamil men originating from the north of Sri Lanka. In
particular, there is no reference to the July 2009 UNHCR report beyond a one-line
comment that cannot be said to accurately reflect the entirety of that
document. A report of the UNHCR in April 2009 and a US DOS Report were not
cited at all. Each of these documents contains extensive references to human
rights violations and the actions of the security forces and paramilitary
groups throughout Sri Lanka. Further, in final submissions to the Board,
counsel for the Applicant highlighted these documents as being directly
relevant to his client’s situation in Colombo. Yet, the Board failed
to mention this evidence, other than one part-sentence from one report. This
evidence has a direct bearing on both the well-foundedness of the Applicant’s
fear, and on the IFA determination. It was open to the Board to consider and
reject this evidence. However, the failure to even mention this contradictory
evidence raises the inference that it was ignored (Cepeda-Gutierrez, para.
17). As a result, the decision is not defensible.
[11]
The
situation before me is very similar to the Board decision considered by Justice
de Montigny in Sinnasamy v. Canada (Minister of
Citizenship and Immigration), 2008 FC 67, [2008] F.C.J. No. 77 (QL). In
that case, as here, the Board did not address most of the findings of the UNHCR
with respect to the treatment of Tamils in Colombo. Justice de
Montigny found that the Board erred in so doing.
[12]
For
these reasons, I will allow this application for judicial review. Neither party
proposed a question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
The
application for judicial review is allowed, the decision of the Board is
quashed and the matter is sent back to the Board for re-determination by a
newly-constituted panel of the Board; and
2.
No
question of general importance is certified
“Judith
A. Snider”
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