Docket: IMM-2742-14
Citation:
2015 FC 813
Ottawa, Ontario, July 2, 2015
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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JENANTHAN
SITTAMBALAM
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Applicant
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and
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MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
Jenanthan Sittampalam is a Tamil male and was
born and raised in the northern part of Sri Lanka. He refused to become
involved in Liberation Tigers of Tamil Eelam [LTTE]; however, his brother was
taken by LTTE, and died in war on January 23, 2009.
[2]
The applicant’s family moved around and he ended
up in an internally displaced persons camp. Due to fear of being taken away by
the army, given his brother’s involvement in the LTTE, the applicant escaped
the camp with a group of others by bribing guards. The applicant left Sri
Lanka for Thailand on March 20, 2010, before making his way on the MV Sun
Sea to Canada.
[3]
The Refugee Protection Division [RPD] in denying
the applicant’s refugee claim focused on his overall credibility, the
allegations of potential persecution, the issue of change in circumstance, and
the sur place claim.
[4]
The applicant has raised numerous issues with
respect to the decision of the RPD; however, in my view, there is one that is
determinative of the application and which makes it unnecessary to examine the
others – the reasonableness of the sur place analysis done by the RPD.
[5]
I have reviewed the record before the RPD and
its decision, and am unable to materially distinguish the analysis done of the sur
place claim in this case, from those in the decisions under review in Thanabalasingam
v Canada (Minister of Citizenship and Immigration), 2015 FC 361 [Thanabalasingam],
Y.S. v Canada (Minister of Citizenship and Immigration), 2014 FC 324,
and B381 v Canada (Minister of Citizenship and Immigration), 2014 FC
608.
[6]
Reference is made to the latter two decisions by
Justice Fothergill in Thanabalasingam. He notes, in particular, the
relevance and importance of two documents when considering sur place
claims from MV Sun Sea passengers. The first is the UNHCR Eligibility Guidelines for Assessing the
International Protection Needs of Asylum-Seekers from Sri Lanka, December
21, 2012 [Guidelines] which notes that failed asylum-seekers, particularly
those who are Tamil, have been detained, ill-treated or tortured after being
forcibly returned to Sri Lanka. The second document is a report titled Amnesty International Concerns with respect to forced
returns to Sri Lanka for passengers of the Ocean Lady and MV Sun Sea [AI
Report] which concluded that failed asylum claimants face a serious risk of
detention, torture and mistreatment if the Sri Lankan government suspects
that they travelled on the MV Sun Sea.
[7]
In the decision under review, the RPD accepts
that the Sri Lankan authorities “may come to know how
the claimant came to Canada” but concludes without mention or analysis
of either of the Guidelines or the AI Report, that because there is little
evidence that he was involved in or a supporter of the LTTE, and because he was
“subjected to rigorous scrutiny by Canadian officials
and been subsequently released” that he would not be at risk if returned
to Sri Lanka.
[8]
As in Thanabalasingam, the RPD has
ignored these relevant and contradictory documents, and has provided no reason
or explanation why, notwithstanding this contradictory evidence, it is of the
view that the applicant would not be at risk. This failure renders the ultimate
conclusion and decision unreasonable.
[9]
For these reasons, the decision will be set aside.
The claim for Convention refugee status or protection in Canada will be remitted
back to be determined by a differently constituted panel.
[10]
Neither party proposed a question for
certification nor is there one on these facts.
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