Date:
20070315
Docket: IMM-651-06
Citation: 2007 FC 287
Ottawa, Ontario, March 15, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
BALASINGAM FRANKLIN SUPIRAMANIAM
MARY CONSTANCE JEYARATNAM
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] The Refugee
Protection Division of the Immigration and Refugee Board (RPD) found that
neither Mr. Balasingam Franklin Supiramaniam nor his wife, Mary Constance
Jeyaratnam, were Convention refugees or persons in need of protection as
defined by section 97 of the Immigration and Refugee Protection Act,
S.C. 2001, c-27 (Act). While the RPD accepted that the claimants were citizens
of Sri Lanka of Tamil ethnicity and appears to have accepted that they “could
well” have been a victim of extortion by the Liberation Tigers of Tamil Eelam
(LTTE), the RPD found that Mr. Supiramaniam and his wife had embellished their
claims of extortion. It also found that Mr. Supiramaniam and his wife had an
internal flight alternative in Colombo.
[2] This
application for judicial review is allowed because of the failure of the RPD to
properly consider the documentary evidence before it as to the risk of
extortion faced by Tamils not only in Jaffna, where the claimants lived, but
also in Colombo. Before dealing with this issue, there are brief comments to
be made concerning the credibility findings of the RPD.
[3] It
is well-settled law that credibility findings made by the RPD are entitled to
the greatest level of deference upon judicial review. Credibility findings
made by the RPD may only be interfered with if they are patently unreasonable.
I am satisfied that a number of the credibility findings made by the RPD in
this case are patently unreasonable. Patently unreasonable findings include
the following:
1. The claimants arrived in Canada on June 17, 2001. They
claimed refugee protection approximately 3 weeks later and explained to the RPD
that they had waited three weeks because they were told that they could make
their claim at any time. Having acknowledged the correctness of that advice
which had been given to the claimants, it was patently unreasonable of the RPD
to then find “[t]he claimant’s response does not indicate that … he was seized
by fear. The tribunal continues finding that his story of persecution is not
to be believed.”
2. Mr. Supiramaniam testified that he had not contacted his
brother in Sri Lanka since coming to Canada because he wanted to avoid creating
problems for his brother from the LTTE. It was patently unreasonable for the
RPD to conclude from that testimony “their behaviour does not correspond to
that of people afraid for their security.”
3. Mr. Supiramaniam admitted that when he went to the Sri Lankan
army in order to obtain a pass that would enable him and his wife to travel
from Jaffna to Colombo, he told army officers that the pass was required
because his children were abroad and it was also “for retirement”. It was
patently unreasonable for the RPD to conclude from Mr. Supiramaniam’s statement
to the army that this explanation was likely the “true reason” for leaving Sri
Lanka. This inference seems to be based on the premise that Mr. Supiramaniam
should have told the army his true reason for leaving Sri Lanka: that he no
longer wanted to give money to the LTTE. Nothing can reasonably be inferred
from the fact Mr. Supiramaniam lied to the army about his reason for leaving Sri
Lanka.
[4] Notwithstanding
these errors, one credibility finding made by the RPD cannot be said to be
patently unreasonable. Mr. Supiramaniam’s testimony to the RPD, given in
January of 2006, was consistent with the information contained in his Personal
Information Form (PIF) prepared in 2001. However, in July of 2004, Mr.
Supiramaniam was interviewed by immigration officers for the purpose of
establishing whether he should be excluded from refugee protection under
section F of Article 1 of the United Nations Convention Relating to the
Status of Refugees. During that apparently brief telephone interview, Mr.
Supiramaniam was recorded in the officers’ notes to have said that he was only
asked to pay money to the LTTE on two occasions. The RPD relied upon this
evidence to conclude that all other testimony about extortion was an
embellishment. That is a conclusion that I may well not have drawn, given the
consistency between Mr. Supiramaniam’s oral testimony and his PIF and the
very special circumstances of the 2004 interview. That said, I cannot find the
conclusion drawn by the RPD on this point to be patently unreasonable.
[5] Turning
to the issue which is determinative of this application, the jurisprudence of
the Federal Court of Appeal establishes that a finding of incredibility does
not prevent a person from being a refugee if other evidence establishes both
the subjective and objective branches of the test for refugee status (see: Attakora
v. Canada (Minister of Employment and Immigration), (1989) 99 N.R. 168).
[6] Having
accepted the claimants’ identity and the fact that they had been extorted on at
least two occasions by the LTTE, the RPD was obliged to assess all of the
documentary evidence before it that dealt with the risk of extortion Tamils,
such as Mr. Supiramaniam and his wife, might be subject to if they were
required to return to Sri Lanka. By failing to do so, the RPD reached its
decision without regard to all of the evidence before it. For a recent review
of Federal Court jurisprudence on this point, please see the reasons of my
colleague Madame Justice Mactavish in Sivalingam v. Canada
(Minister of Citizenship and Immigration), [2006] F.C.J. No. 965; 2006 FC
773.
[7] The
documentary evidence before the RPD included the following:
1. The 2003 and 2004 United States Department of State Reports on
Sri Lanka which confirm that the LTTE continues to be responsible for
extortion.
2. The Sri Lanka Monitoring Mission (SLMM) reported that the
third most common complaint made to the SLMM about the LTTE was that it
violated the cease-fire agreement by extorting money.
3. The RPD’s document entitled “Sri Lanka Assessment” noted that
members of the LTTE abducted people for ransom and forced people to provide
them with food and money.
4. Both an Immigration and Refugee Board Response to Information
Request (LKA100506.E) and the “Report on Fact-Finding Mission to Sri Lanka” by
the Danish Immigration Service reported that all Tamil paramilitary groups have
offices in Colombo and that the Eelam People’s Democratic Party engages in
extortion in Colombo’s Tamil neighbourhoods. Also, there were numerous reports
of extortion by the LTTE in the north and east.
[8] In
view of this information, the RPD was obliged to consider whether, even if
their testimony was embellished, the country condition reports established that
the claimants had a well-founded objective basis for their fear of persecution.
[9] With
respect to the RPD’s finding of an internal flight alternative in Colombo, this
is the second decision of the RPD regarding the applicants’ claim for
protection. The first decision was set aside by my colleague Mr. Justice Phelan
in reasons reported at 2005 FC 1264. At paragraphs 14 and 15 he wrote:
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.
[10] In
the present case, in the context of considering the existence of an internal
flight alternative in Colombo, the RPD only considered whether the LTTE would
pursue the claimants in Colombo. The RPD noted “no documents were adduced to
show that the LTTE pursues people in Colombia who have not made payments to
them.” With respect, the RPD has again failed to consider whether or not Colombo
is a safe haven from extortion for Tamils, such as the applicants, who are
returning from abroad. This is a material error in view of the documentary
evidence of extortion occurring in Colombo’s Tamil neighbourhoods.
[11] The
application for judicial review is therefore allowed. Counsel posed no
question for certification and I agree that no question arises on this record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed and the
decision of the Refugee Protection Division dated January 20, 2006 is hereby
set aside.
2. The matter is remitted for redetermination in accordance with
these reasons by a differently constituted panel of the Refugee Protection
Division.
“Eleanor
R. Dawson”
FEDERAL COURT
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: IMM-651-06
STYLE OF CAUSE: BALASINGAM FRANKLIN
SUPIRAMANIAM and MARY CONSTANCE JEYARATHAM, applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION, Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 17, 2007
SUPPLEMENTARY WRITTEN
SUBMISSIONS: JANUARY 19, 26, 29,
FEBRUARY
16 and
MARCH
5, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: DAWSON, J.
DATED: MARCH 15, 2007
APPEARANCES:
KUMAR S. SRISKANDA FOR
THE APPLICANTS
AMY LAMBIRIS FOR
THE RESPONDENT
SOLICITORS OF RECORD:
KUMAR S. SRISKANDA FOR
THE APPLICANTS
BARRISTER & SOLICITOR
SCARBOROUGH, ONTARIO
JOHN H. SIMS, Q.C. FOR
THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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