Date: 20080408
Docket: IMM-185-07
Citation: 2008 FC 434
Ottawa, Ontario, April 8, 2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
RUDOLPH FIXGERA LAPPEN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Rudolph
Fixgera Lappen (the “Applicant”) is a Tamil male from Sri Lanka who lived in India from 1990 until 2004
when he came to Canada and claimed refugee
protection. That claim was rejected by the Refugee Protection Division of the Immigration
and Refugee Board (the “Board”) in a written decision dated December 13, 2006.
The Applicant applies for a judicial review, pursuant to section 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA”), of the Board’s decision.
[2]
For
reasons that follow, the application is allowed and the decision of the Board
is set aside.
BACKGROUND
[3]
The
Applicant is a 39 year old citizen of Sri Lanka.
He is from Trincomalee in eastern Sri Lanka.
He left Sri Lanka in 1990 for India where he stayed in a refugee camp in
Erode in the state of Tamil Nadu. He left India on October 2, 2004 and arrived
in Canada on October 3, 2004. He made
his claim for refugee protection on October 4, 2004.
[4]
The
Applicant claimed that as a youth in Sri Lanka
he had been detained for two days by the Sri Lankan army for being a supporter
of the Liberation Tigers of Tamil Eelam (the “LTTE”). As a result of this
detention the Applicant’s father sent him to Jaffna, northern Sri Lanka, in 1984. In 1990, the LTTE approached
the Applicant to persuade him to join their cause. The Applicant claims he
was forced to do manual labour for the LTTE. In September 1990, to avoid
further pressure from the LTTE, the Applicant’s relatives sent him to India. The Applicant lived in the Erode
refugee camp from September 1990 until June 2001. While at the camp he married
and had three children.
[5]
The
Applicant claims that beginning in 1999, the Q Branch of India’s Security
Service began to question him suspecting his involvement with LTTE. The
Applicant says he went into hiding and eventually left India for Canada in October 2004.
DECISION UNDER REVIEW
[6]
The
Applicant based his refugee claim on a fear of persecution at the hands of the
LTTE and the Sri Lankan army as a result of being a member of a particular
social group, that is a Tamil male from eastern Sri Lanka. The Board determined that the claimant
is not a Convention refugee and is not a person in need of protection and that
his claim does not have a credible basis. Accordingly, the Applicant’s claim
was rejected.
[7]
The Board
accepted the Applicant’s identity documents.
[8]
The Board
stated that credibility was the determinative issue in this claim. It
concluded its written reasons with the following:
Based on all the above, the claimant was
found not to be credible. He failed to establish the well-foundedness of his
fear with credible evidence.
The panel therefore has determined the
claimant, Mr. Rudolph Fixgera LAPPEN (a.k.a. Sathiayamoorthy Rudolph Fitzgerald
Lappen), not to be a “Convention refugee10 “and nor a “person in
need of protection”11. Hence, it rejects his claim for refugee
protection.
The panel has further determined the
claimant has no credible basis to his claim as defined under Section 107(2) of
the Immigration and Refugee Protection Act (IRPA) [citations omitted].
ISSUE
[9]
Given the
Board’s finding that the Applicant did not have a well-founded fear of
persecution under section 96 of the IRPA, did it have regard to the evidence
submitted with respect to its determination that the Applicant was not a person
in need of protection under section 97 of the IRPA?
STANDARD OF REVIEW
[10]
Having
accepted the identity of the Applicant, the Board’s decision that the Applicant
was not a person in need of protection is necessarily based on assessing the
Applicant’s profile against the country evidence documentation. This is a
question of fact.
[11]
In Dunsmuir
v. New
Brunswick,
2008 SCC 9 at para. 34, the Supreme Court of Canada determined that there are
now only two standards of review in judicial review proceedings: correctness
and reasonableness.
[12]
The
Supreme Court stated that if prior jurisprudence has determined, in a
satisfactory manner, the degree of deference to be afforded to the question at
hand, no further standard of review analysis is required (Dunsmuir,
above, at para. 62). .
[13]
Prior
jurisprudence has concluded that the standard of review for questions of fact
was patent unreasonableness (Aguebor v. Canada (Minister of Employment and
Immigration) (1993), 160 N.R. 315). In Wa Kabongo v. Canada (Minister of Citizenship and
Immigration),
2008 FC 348, Justice Mosley concluded that the effect of Dunsmuir,
above, was to establish a standard of review for a Pre-Removal Risk Assessment
Officer’s findings of fact as one of reasonableness. I see no reason why
Justice Mosley’s reasoning should not also apply to findings of fact made by
members of the Refugee Protection Division.
[14]
In
Dunsmuir, above, at para. 47, the Court gave useful instruction on
applying the reasonableness standard. Reasonableness is concerned with the
existence of justification, transparency and intelligibility within the
decision-making process. It is also concerned with “whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law”. Justification requires that a decision be made with
regard to the evidence before the decision-maker. A decision cannot be a
reasonable one if it is made without regard to the evidence submitted. I find
support for this rationale in Justice Teitelbaum’s decision in Katwaru v. Canada (Minister of
Citizenship and Immigration), 2007 FC 612 at paras. 18, 22.
ANALYSIS
[15]
In its
decision, the Board chose to focus heavily on the question of credibility. In
its reasons, 15 of the 25 paragraphs begin or end with a statement to the
effect that the Applicant was not believable or credible.
[16]
The
question for the Board, underlying any scrutiny of whether or not an applicant
is credible, is whether the refugee claimant has a well-founded fear of
persecution as set out in section 96 of IRPA or whether the claimant faces, on
return, a risk of torture or risk of life as set under section 97.
[17]
When the
identity of an applicant is accepted, the Board is obligated to address the
question of risk set out under section 97 of the IRPA; this is so even where
the board does not accept the applicant’s allegations and finds him not to be
credible. Justice Snider discussed this very point in Balasubramaniam v. Canada (Minister of Citizenship and
Immigration),
2003 FC 1137 at para. 10:
This Court has held that, where the
identity of a young Tamil is accepted, the Board is under an obligation to
assess the risk to the claimant if returned to Sri Lanka, even if the claimant’s
personal account of what happened to him is found not credible (Seevaratnam v.
Canada (Minister of Citizenship and Immigration), [199] F.C.J. No. 694 (T.D.)
(QL); Kamalanathan v. Canada (Minister of Citizenship and Immigration), 2001
FCT 553, [2001] F.C.J. No. 826(T.D.) (QL); Jeyaseelan v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 356, [2002] F.C.J. No. 458 (T.D.) (QL);
Mylvaganam v. Canada (Minister of Citizenship and Immigration, [2000] F.C.J.
No. 1195 (T.D.) (QL)).
[18]
The Board
focussed much of its discussion in its reasons, 12 paragraphs out of 25, on
issues of credibility arising from the Applicant’s account of his sojourn in India. It seems that this analysis was done
at the expense of considering the fear the Applicant alleged should he be
returned to Sri
Lanka, his
country of citizenship. The remaining discussion by the Board focus on the
Applicant’s account of events before leaving Sri Lanka and his report of the
treatment of family members there.
[19]
The
Applicant submits that the Board accepted the Applicant’s identity which,
together with the country documents, provides evidence that the Applicant faces
a risk to his life, as set out under section 97 of the IRPA, if returned to Sri Lanka. The Applicant relies on Baranyi
v. Canada (Minister of Citizenship and
Immigration),
2001 FCT 664 at para. 14, where Justice O’Keefe references this Court’s earlier
decision in Seevaratnam v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 130:
Even in situations where the CRDD finds
an applicant not to be credible it still must consider the documentary
evidence. This Court in Seevaratnam v. Canada (Minister of
Citizenship and Immigration) (1999), 167 F.T.R. 130
(F.C.T.D.) stated at page 132:
Clearly, where the only evidence linking
the claimant to the persecution emanates from his or her testimony, rejecting
the testimony means there is no longer a link to the persecution. It becomes
impossible to establish a link between the person's claim and the documentary
evidence.
This is obviously different from the
present case, where there was evidence, including her NIC, emanating from
sources other than the applicant's testimony, which can link her claim to the
ongoing persecution of young Tamil women in Sri Lanka.
The documentary evidence may have
established a well-found fear of persecution on the applicant's behalf or it
may not have. The CRDD should have assessed this evidence to determine whether
or not it established a well-founded fear of persecution…
[20]
The
Respondent argues that the Applicant has failed to produce any credible
evidence that violations of human rights that may be established by the
documentary evidence threaten him personally if he is returned to Sri Lanka. The Respondent asserts that
refugee claimants must establish a link between themselves and the persecution
on a Convention ground (Mohamud v. Canada (Minister of Employment and
Immigration), [1994] F.C.J. No. 65).
[21]
The
Applicant had submitted three packages of country documentation to the Board
describing human rights violations in Sri Lanka.
The Applicant maintains that the country documentation is evidence that a
person with the Applicant’s profile would face a risk of persecution if
returned to Sri
Lanka.
[22]
The
Applicant is a 39 year-old Tamil from eastern Sri Lanka who spent some 14 years as a refugee in India and who faces the prospect
of being returned to Sri
Lanka.
[23]
A review
of the country documentation discloses that the LTTE have been targeting
civilians, conscripting young people into militia and fighting groups while
also compelling civilians to provide forced labour or pay extortion monies to
finance LTTE operations. A review of the country documentation discloses,
among other matters, that:
·
The
situation in the east and also the north of Sri Lanka has deteriorated and civilians are
increasingly targeted and caught up in the violence. (Sri Lanka: A Climate of Fear in the East – Amnesty
International, Tribunal Record p. 0486)
·
The
present ceasefire has helped the LTTE to “collect with penalties” from those
Tamils who have “escaped” paying their contributions in the recent past.
(Financial Fodder – Internal Sources of LTTE Funds, Institute of Peace and
Conflict Studies, 16 October 2004, Tribunal Record p. 0162)
·
A 54 year
old Tamil engineer who returned from Australia
and refused to pay LTTE protection money was killed in Columbo (Proof of LTTE
Taxes, The Island, 24 September 2002, Tribunal Record p. 0165)
·
A 39 year
old driver and mechanic was allegedly abducted by LTTE on 21 June 2003. He was
reportedly taken from his home by a man who told him that LTTE wanted his
assistance in acquiring a vehicle. He never returned. (Sri Lanka: A Climate of Fear in the
East – Amnesty International, Tribunal Record p. 0487)
[24]
I accept
the Applicant’s argument that there is some evidence before the Board that may
show that the Applicant may be a person in need of protection, as set out under
section 97 of the IRPA, if returned to Sri Lanka. This is notwithstanding his long
absence in India. It is the Applicant’s
identity, as accepted by the Board, which may form the basis for his need for
protection.
[25]
A review
of the Board’s reasons discloses that the Board never considered the
Applicant’s profile in conjunction with the country condition evidence.
Instead, the Board remained fixated on its credibility finding exercise. In my
view, this is a reviewable error committed by the Board.
[26]
In Maimba
v. Canada (Minister of Citizenship and
Immigration),
2008 FC 226 at para. 22, Justice Kelen described the error as follows:
Having reviewed the evidence and the applicant's
submissions in this regard, the Court concludes that the Board erred in its
assessment of the documentary evidence. The case law is clear that when
assessing an applicant's objective risk of harm in returning to their country
of origin, there may be instances where, having accepted the applicant's
identity, the objective documentary evidence is such that the claimant's
particular circumstances make him a person in need of protection despite the
fact that the Board has found the claimant lacks credibility: see Kandiah v. Canada (Minister of Citizenship and Immigration),
2005 FC 181, [2005] F.C.J. No. 275 (QL) per Martineau J. However, Mr.
Justice Martineau also states that such assessments are to be made on a case-by-case
basis depending on the nature of the evidence presented in the particular case (emphasis added).
[27]
This Court
has held previously that there may be instances where a refugee claimant, whose
identity is not disputed, is found to be not credible with respect to his
subjective fear of persecution, but the “country conditions are such that the
claimant’s particular circumstances make him/her a person in need of
protection.” (Bouaouni v. Canada (Minister of Citizenship and Immigration), 2003 FC 1211 at para. 41;
see also Ozdemir v. Canada (Minister of Citizenship and
Immigration),
2004 FC 1008).
[28]
I find
that the Board failed to consider the Applicant’s identity evidence, which it
accepted, and the relevant documentary evidence submitted before deciding
whether or not the Applicant would be a person in need of protection if
returned to Sri
Lanka. I find
that the Board’s decision is unreasonable.
CONCLUSION
[29]
The
application for judicial review succeeds. The decision of the Board is quashed
and the matter is referred back for reconsideration by a differently
constituted panel. There is no question for certification.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. That the
decision is quashed and the matter is referred back to a differently
constituted panel for reconsideration.
2. No question
of importance is certified.
“Leonard
S. Mandamin”
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