Date: 20071005
Docket: IMM-4094-06
Citation: 2007 FC 1031
Ottawa, Ontario, October 5, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
SAROGINIDEVI SIVAGURUNATHAN
SIVAGURUNATHAN KURUSAMY
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Kurusamy
Sivagurunathan and his wife, Saroginidevi Sivagurunathan, are citizens of Sri
Lanka who claimed refugee protection.
[2] Mr.
and Mrs. Sivagurunathan gave evidence before the Refugee Protection
Division of the Immigration and Refugee Board (RPD or Board) that they were
originally from Jaffna, Sri Lanka. When Mr. Sivagurunathan obtained work
in Saudi Arabia in 1980, Mrs. Sivagurunathan remained in Jaffna with their
family. In 1995, Mrs. Sivagurunathan and her daughter fled Jaffna to
reside in Colombo. Until his retirement in July of 2005, Mr. Sivagurunathan
visited his family in Colombo each year during his vacation. Mrs. Sivagurunathan
testified about her fear of the army and the police. The event that they said
caused them to flee Sri Lanka took place in January of 2005, when five youths
came to their home in Colombo. The youths identified themselves to be members
of the Liberation Tigers of Tamil Eelam (LTTE) and demanded money. Mr. Sivagurunathan
paid some money to them and promised to pay more later. Instead, Mr. and Mrs.
Sivagurunathan left Sri Lanka, fearing that Mr. Sivagurunathan would be
abducted or killed by the LTTE because he failed to pay the promised money.
[3] The
RPD accepted that Mr. and Mrs. Sivagurunathan were Tamils and that
Mr. Sivagurunathan had lived and worked in Saudi Arabia. The RPD did not,
however, believe Mrs. Sivagurunathan's testimony about her fear of the
army and did not believe Mr. Sivagurunathan's testimony about his efforts
to avoid extortion by the LTTE while he was in Jaffna in 1992. While Mr. and
Mrs. Sivagurunathan challenge those credibility findings, I have not been
persuaded that they were patently unreasonable so as to warrant intervention on
this application for judicial review.
[4] Mr.
and Mrs. Sivagurunathan also argue that the Board was overzealous in its search
for inconsistencies in their testimony and say that the Board asked vague and
confusing questions. I have carefully reviewed the transcript of the hearing
and, in my view, the manner in which the RPD questioned Mr. and Mrs.
Sivagurunathan did not assist these older persons in giving their evidence
through an interpreter. However, the manner of the Board's questioning of Mr.
and Mrs. Sivagurunathan, while not exemplary, does not warrant intervention.
[5] What
does warrant intervention is the RPD's failure to come to grips with the
central element of Mr. and Mrs. Sivagurunathan's claim and the Board’s cursory
treatment of the issue of state protection. The Board did not reject their
testimony about the 2005 extortion attempt. The Board's only reference to this
event is as follows:
The male
claimant was questioned about his failure to apply for state protection when,
on January 15, 2005, Tigers allegedly came to extort money from him. He
explained that if he complained against Tigers, the latter would punish him in
abducting him or even shoot him if they were very angry at him. To further
questioning, he added that he heard that the army or the police never protect
Tamils.
[6] Having
apparently accepted that an extortion attempt took place, the Board then moved
to the issue of the existence of state protection, writing:
The panel is aware
that, since the ceasefire agreement in February 2002, plenty of problems have
surfaced. The road to final peace between the belligerents is not an easy one.
Although there are still isolated incidents, the ceasefire has been in effect
for more than three years now, which is a tremendous achievement in itself.
Considering all the evidence, the panel finds that the claimant [sic] would
not face more than a mere possibility of persecution or that on a balance of
probabilities, he [sic] would be subjected to a danger of torture, or to
a risk to life or to a risk of cruel and unusual treatment or punishment if
they returned to Sri Lanka and lived in the government controlled areas.
[7] The
country condition documentation was express that, as a consequence of the
ceasefire agreement, the LTTE was able to move freely in government-controlled
areas and, thus, was free to extend its extortion activity into those areas.
At the same time, the LTTE was said to have formalized what it referred to as
its collection of "taxes". Citizens who did not pay as required were
reported to risk detention by the LTTE. During the course of the hearing, the
presiding member observed that he was aware that there was a great deal of
extortion carried on by the LTTE in respect of business people in Colombo.
[8] In
light of this evidence, the Board was required to provide a more coherent and
comprehensive explanation for its conclusion that Mr. and Mrs. Sivagurunathan
would not face more than a mere possibility of persecution if they returned to Sri
Lanka and lived in government-controlled areas.
[9] The
application for judicial review is therefore allowed. Counsel posed no
question for certification, and I see no question arising 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 June 16, 2006 is hereby set
aside.
2. The matter is remitted for redetermination by a differently
constituted panel of the Refugee Protection Division.
“Eleanor R. Dawson”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4094-06
STYLE OF CAUSE: SAROGINIDEVI SIVAGURUNATHAN
SIVAGURUNATHAN KURUSAMY, applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION, Respondent
PLACE OF HEARING: TORONTO,
ONTARIO
DATE OF HEARING: SEPTEMBER 19, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: DAWSON, J.
DATED: OCTOBER 5, 2007
APPEARANCES:
DAVID YERZY FOR
THE APPLICANTS
LADAN SHAHROOZ FOR
THE RESPONDENT
SOLICITORS OF RECORD:
DAVID YERZY FOR
THE APPLICANTS
BARRISTER
& SOLICITOR
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR
THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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