Date: 20080108
Docket: IMM-4558-06
Citation: 2008 FC 20
Ottawa, Ontario, January 8,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
SUTHA BALAKUMAR
ARUMUGAM KANESA BALAKUMAR
BALAKUMAR
ABINAYA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. BACKGROUND
[1]
The
Immigration and Refugee Board (Board) held that the principal Applicant was not
credible and concluded that although she and her husband and daughter were
Tamils from Sri
Lanka,
they had a viable internal flight alternative (IFA) in Colombo. There was
no specific analysis of the s. 97 claim for protection.
II. FACTS
[2]
The
Applicants claimed that the LTTE had extorted money from their respective
families since approximately 1984. Mr. Balakumar worked in the Middle East
while Mrs. Balakumar worked in Batticaloa, Sri Lanka. They took
turns visiting each other.
[3]
Mrs.
Balakumar and their daughter, who is deaf-mute, attended a special programme
for the child’s disability in India for 1½ years. Following that, they joined
Mr. Balakumar in Qatar where they obtained U.S. visas so
that their daughter could attend another programme. Prior to going to the U.S., Mrs.
Balakumar and their daughter returned to Batticaloa in April 2004.
[4]
The
Applicants claim that in May 2004 representatives of the Karuna faction of the
LTTE tried to extort money from them. Mrs. Balakumar informed her husband, who
was still out of the country, and he told her to go to Colombo where he had
arranged a place to stay. He subsequently joined them in Colombo and the family
then left for the U.S. in early June 2004. It was not until mid-August
2004 that the family came to Canada.
[5]
The
Board found Mrs. Balakumar not to be credible on an important issue – the
number of times she was visited by the LTTE.
[6]
The
Board found that Mr. Balakumar had not established a well-founded fear because
he had not resided in Sri Lanka for a number of years, he
had had no problem travelling back and forth to visit his family and he was not
sought by either the government or the LTTE.
[7]
As
to the claims of Mrs. Balakumar and their daughter, there were two key
components. Firstly, it was not credible or plausible that Mrs. Balakumar would
have been targeted by or otherwise had problems with the LTTE in May 2004.
Secondly, the family would not have to settle back in Batticaloa where she had
worked because they could have remained in Colombo.
III. ANALYSIS
[8]
The
Applicants take issue with the Board’s credibility findings, on the IFA
conclusion and with the absence of a separate s. 97 analysis.
[9]
In
respect of the standard of review, I accept the conclusions in Sarker v. Canada (Minister of
Citizenship and Immigration), 2005 FC 353, that the findings of
credibility and existence of an IFA are subject to a standard of patent
unreasonableness. However, whether the Board applied the correct test in
finding an IFA is a question of law subject to a standard of correctness (see Ezemba
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1023). Likewise, whether there
must, as a matter of law, be a separate s. 97 analysis is also a question of
law and subject to the same standard of correctness.
[10]
Given
my conclusion in this matter, I will make no comment on the credibility
findings. However, there are errors on other matters which justify referring
this matter back to the Board.
A. Separate
Section 97 Analysis/IFA
[11]
The
issue of a separate s. 97 analysis arose from the Board’s finding that the
subjective fear requirement was not met because it was not credible. The
Applicants argue that the Board is nevertheless required to consider the
objective and higher evidentiary burden of a s. 97 analysis.
[12]
In
Bouaouni v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1211, Justice Blanchard
underscored the need for separate consideration of s. 96 and s. 97 even where
the evidentiary basis is the same. Even where the subjective element of s. 96
is not credible, the Board is required to consider the objective evidence and
the different test to be applied in s. 97 – that on a balance of probabilities,
a claimant would be subject to the dangers and risks in s. 97.
[13]
It
is not necessary that there be a rigid bright line between the s. 96 and s. 97
considerations. A finding that the objective element of s. 96 had not been met
could, depending on the circumstances, dispose of the s. 97 issue as well.
However, the rejection of the subjective element of s. 96 does not entitle the
Board to ignore the objective element of fear particularly in respect of
s. 97. The form in which that consideration occurs is not one which the
Court should direct – what is important is that it be done and appear to be
done.
[14]
A
finding of a valid IFA would generally be sufficient to dispose of a s. 97
claim. However, as I held in Gnanasekaram v. Canada (Minister of
Citizenship and Immigration), 2007 FC 297, the Board errs when it makes
no analysis of risk (in that case, as here, the risk in Colombo) where the
evidence of danger is advanced and not addressed.
[15]
The
Board, in the present case, simply stated that the family did not necessarily
have to go back to Batticaloa but could arrive and remain in Colombo. It
concludes: “In the current circumstances the panel does believe that that would
be a viable option for the claimants”.
[16]
The
Board does not address the Applicant’s evidence and argument of the risk from
the LTTE to Tamils living in Colombo. The Board ignored the
fact that the LTTE group, which allegedly approached Mrs. Balakumar, was one
linked to the government.
[17]
In
this case, the Board erred in failing to address the evidence which undermined
the IFA finding. It would appear that the Board, having found the Applicants
not credible, did not go on to conduct a proper s. 97 analysis. That would be
an error of law. To the extent that the IFA finding is considered as addressing
s. 97 issues, it was patently unreasonable and an error in law because it did
not consider the evidence of risk in Colombo.
IV. CONCLUSION
[18]
Therefore,
this application for judicial review will be granted, the Board’s decision quashed
and the matter remitted back to a differently constituted panel.
[19]
The
parties did not seek to have a question certified. I concur.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review will be granted, the Board’s decision is
quashed and the matter is to be remitted back to a differently constituted
panel.
“Michael
L. Phelan”
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