Date: 20080114
Docket: IMM-6516-06
Citation: 2008 FC 44
BETWEEN:
THAYASEELAN
SELLAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
PHELAN
J.
I. INTRODUCTION
[1]
The
Immigration and Refugee Board’s (Board) denial of the Applicant’s claim for
protection raises the issue of whether the Board should have considered the
objective risks faced by the Applicant as a young Tamil male from Jaffna, Sri Lanka,
despite the Board’s negative credibility findings.
II. BACKGROUND
[2]
The
Applicant, 27-years old at the time of his application, is a Tamil male from
the Jaffna area in
northern Sri
Lanka.
He claimed that he and his brothers had been subjected at various times to
forced labour, detention, interrogations and beatings by both the LTTE and the
army. In addition, his father had been forced to pay “protection money” to keep
his family safe.
[3]
The
Applicant further claimed that he left Sri Lanka to avoid the
consequences of his refusal to join the LTTE. He said that he left Sri Lanka on
June 17, 2005 and arrived in Canada via Paris the next
day.
[4]
The
Board did not believe the Applicant’s account of his travel itinerary because
the time taken to travel the route should have been longer than the period
claimed. The Board did not accept that the Applicant had lived in Sri Lanka until June
2005 because he claimed to have experienced travel restrictions at a time when
none existed.
[5]
The
Board rejected his uncorroborated story of his itinerary and his testimony as
to his whereabouts prior to coming to Canada. Therefore, the Board
concluded that the Applicant had failed to establish a subjective fear of
persecution under s. 96 of the Immigration and Refugee Protection Act
(IRPA) nor produced credible evidence that he was in need of protection under
s. 97 of the IRPA. However, the Board did accept his identity as a young Tamil
male from the Jaffna area.
[6]
The
principal issue argued by the parties was whether the Board erred by failing to
analyse the risk to the Applicant, independent of any issue of credibility,
when his identity as a Tamil male was accepted.
III. ANALYSIS
[7]
As
the issue is phrased, in paragraph 6, this is an issue of law for which the
standard of review is correctness. The Board did not undertake a s. 97 analysis
after having concluded that the Applicant’s story as to where and when he lived
prior to arrival in Canada was not credible.
[8]
In
Balakumar v. Canada (Minister of
Citizenship and Immigration), 2008 FC 20, I held that the Board was
required to conduct a separate s. 97 analysis even where the subjective element
of a s. 96 claim failed. In particular, I concluded at paragraph 13 of that
decision:
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.
[9]
In
the present case, even if the Applicant had not lived in the Jaffna area
immediately before coming to Canada, there is no evidence to suggest that he
could, upon rejection of his claim, go to any other country but Sri Lanka or
any other part of Sri Lanka but the Jaffna area.
[10]
The
Board, having accepted his identity, did not go on to consider the objective
evidence which was before it as to country conditions in Sri Lanka or the
nature and extent of the risk to the Applicant upon being returned to his home
country.
[11]
The
matter of objective risk was put in issue by the Applicant and there was
material before the Board upon which it could rely. This is not a situation
where there was no claim under s. 97, nor any s. 97 evidence and a simple
reliance on a free-standing right to s. 97 consideration independent of the
burden which rests on an applicant to state his/her case or independent of the
evidentiary record in the case. Nor does the Applicant argue that all young
Tamil males are entitled to protection by virtue of their identity per se.
[12]
Given
the record before the Board, it was under an obligation to assess the s. 97
risk despite a credibility finding which did not dispose of the s. 97 risk.
[13]
Therefore,
this application for judicial review will be granted, the decision will be
quashed and the matter remitted for a new determination by a different panel of
the Board.
[14]
As
to the issue of a question to be certified, the parties will be entitled to
make submissions before a formal Order is issued.
“Michael
L. Phelan”
Ottawa, Ontario
January
14, 2008
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