Docket: IMM-520-15
Citation:
2016 FC 50
Ottawa, Ontario, January 19, 2016
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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THEVANANTHINI
SELVARATNAM
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA or the Act] challenging the Refugee Protection Division’s
[the RPD, the Board, Panel member, or Member] decision finding the Applicant,
Thevananthini Selvaratnam, to be neither a Convention refugee nor a person in
need of protection pursuant to sections 96 and 97 of the Act. The Applicant is
seeking to have the decision set aside and referred back to a different board.
For the reasons that follow, the application is allowed.
[2]
The Applicant is a single Tamil female citizen
of northern Sri Lanka without male protection. She entered Canada in August
2010, aboard the MV Sun Sea and subsequently made a refugee protection claim.
[3]
Before the Court, the Applicant’s counsel
indicated that he wished to limit his client’s argument to the sole issue that
the Board failed to address the specific risks for young single Tamil women in
the North of Sri Lanka. The Applicant’s counsel indicated that this issue had
not been raised in the memorandum and although he represented the client before
the Board, the memorandum was drafted by another lawyer, as he was required to
work on a number of matters due to the absence of a key senior lawyer. He was
unable to turn his mind to this case until shortly before this Court hearing.
[4]
While the Court was of the view that an earlier
indication ought to have been provided as opposed to raising the matter at the
hearing proper, in the interest of justice, it nevertheless provided the
parties with an opportunity to file additional written submissions on the
determinative issue. It did so only after hearing the Applicant’s brief
remarks, which raised a reasonable possibility that the RPD’s decision might be
set aside.
[5]
Having reviewed the parties’ submissions and the
materials in the Certified Tribunal Record referred to by them, I am satisfied
that the Member failed to adhere to the Chairperson Guidelines: Women
Refugee Claimants Fearing Gender-Related Persecution [Gender Guidelines]
and for that reason the decision must be set aside.
[6]
The Applicant specifically directed the Board’s
attention to the recent decision of Member Bruin in RPD file number VB1-00133.
This decision comprehensively reviewed the evidence relating to the social,
cultural, religious and economic context in which Tamil women in northern Sri
Lanka found themselves in 2013.
[7]
In this matter, the Member provided fulsome
reasons responding to several issues argued by the Applicant. These related to
the Applicant’s lack of credibility, and her arguments that she was at risk of
being seen as a Liberation Tigers of Tamil Eelam [LTTE] adherent or supporter,
a returning refugee claimant from the MV Sun Sea, or someone having a sur
place claim from events in Canada. The Board rejected these arguments,
which rulings have not been challenged.
[8]
However, it nevertheless remains that the
Applicant addressed the general situation of single women in northern Sri Lanka
without male protection. The Board was required to address the issue,
particularly as it was specifically directed to the recent decision of Member
Bruin, who conducted an exhaustive review of this issue and concluded in
relatively similar circumstances that it would be unreasonable to require a
young single Tamil woman who was returning from abroad to relocate within Sri
Lanka. Instead of dealing with this issue, the Board limited its review to an
analysis of a failed LTTE supporter profile, a failed asylum-seeker profile and
the Applicant’s sur place claim.
[9]
I find that the Member failed to address the
Applicant’s general situation as a single Tamil woman from the North without
male protection returning to Sri Lanka in accordance with the Gender
Guidelines. By the omission of failing to address a determinative issue raised
by the party at the hearing and in her subsequent written submissions, the
decision fails to meet the transparency requirement of reasonableness described
in Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 48, thereby constituting
a reviewable error.
[10]
Accordingly, the application is allowed. The
Board’s decision is set aside and the matter is referred back to a differently
constituted panel for a redetermination. No questions are certified for appeal.
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