A-802-91
| IN THE MATTER OF the Immigration Act, R.S.C. 1985, c. I-2, S.C. 1988 C 35 and Amendments and Regulations thereto; |
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| AND IN THE MATTER OF a decision of the Immigration and Refugee Board, Convention Refugee Determination Division, regarding the refugee claim of Ranjini Ramasamy : File No. T90-01444; |
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| AND IN THE MATTER OF the Canadian Charter of Rights and Freedoms. |
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BETWEEN:
RANJINI RAMASAMY
Applicant
- and -
THE MINISTER OF EMPLOYMENT
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated March 8, 1991. The Board determined that the applicant was not a Convention refugee.
In my opinion, the following part of the Board's decision shows that the latter misapplied or misinterpreted the definition of Convention refugee as set out in subsection 2(1) of the Immigration Act, and thus erred in law:
| The issue which we also have to consider however, is, as discussed in Adjei4, whether the claimant has good grounds for fearing persecution for any one of the reasons in the Immigration Act, if she were to return to Sri Lanka. In this case, the agents of persecution - the IPKF - are no longer in Sri Lanka and with their withdrawal, the EPRLF is no longer a threat. As for the Sri Lankan government, there is little evidence that the claimant has more than a mere possibility of being persecuted by the Sri Lankan authorities if she were to return to Sri Lanka. Consequently, the panel is of the opinion that the claimant failed to establish that she has good grounds for fearing persecution for any one of the reasons enumerated in the definition. |
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| 4 Adjei v. Canada (M.E.I.) (1989), 57 D.L.R. (4th) 153 (F.C.A.) |
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In Adjei, supra, MacGuigan J.A. for the Federal Court of Appeal said:
| It was common ground that the objective test is not so stringent as to require a probability of persecution. In other words, although an applicant has to establish his case on a balance of probabilities, he does not nevertheless have to prove that persecution would be more likely than not. Indeed, in Re Naredo and M.E.I. (1981), 130 D.L.R. (3d) 752 at p. 753, 40 N.R. 436 at p. 437 sub nom. Arduengo v. M.E.I. (F.C.A.), Heald J.A. said: |
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| Accordingly, it is my opinion that the Board erred in imposing on this applicant and his wife the requirement that they would be subject to persecution since the statutory definition required only that they establish "a well-founded fear of persecution". The test imposed by the Board is a higher and more stringent test than that imposed by the statute. |
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| The parties were agreed that one accurate way of describing the requisite test is in terms of "reasonable chance": is there a reasonable chance that persecution would take place were the applicant returned to his country of origin? |
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| We would adopt that phrasing, which appears to us to be equivalent to that employed by Pratte J.A. in Seifu v. Immigration Appeal Board (A-277-82, dated January 12, 1983) [unreported]: |
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| [I]n order to support a finding that an applicant is a convention refugee, the evidence must not necessarily show that he "has suffered or would suffer persecution"; what the evidence must show is that the applicant has good grounds for fearing persecution for one of the reasons specified in the Act. |
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| What is evidently indicated by phrases such as "good grounds" or "reasonable chance" is, on the one hand, that there need not be more than a 50% chance (i.e., a probability), and on the other hand that there must be more than a minimal possibility. We believe this can also be expressed as a "reasonable" or even a "serious possibility", as opposed to a mere possibility. |
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In Ponniah v. Canada (M.E.I.)1, Desjardins J.A. for the Federal Court of Appeal clarified the test set out in Adjei:
| An applicant, according to Adjei, supra, does not have to prove that persecution would be more likely than not. He has to establish "good grounds" or "reasonable chance" for fearing persecution. |
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| "Good grounds" or "reasonable chance" is defined in Adjei as occupying the field between upper and lower limits; it is less than a 50 per cent chance (i.e., a probability), but more than a minimal or mere possibility. There is no intermediate ground: what falls between the two limits is "good grounds". |
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| If the claimant, as the Board said, "may face slightly more than a mere possibility" of persecution, he had crossed the lower limit and had made his case of "good grounds" or a "reasonable chance" for fearing persecution. |
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In light of all the relevant facts, I do not believe that the Board here intended to say, nor could it have said, that there is "no evidence" that the claimant has more than a mere possibility of being persecuted. In that context, if indeed there existed, as the Board stated, "little evidence that the claimant has more than a mere possibility" of being persecuted, I find that, as was the situation in Ponniah, the claimant herein has crossed the lower limit and has made out her case that she has "good grounds" or a "reasonable chance" for fearing persecution.
Consequently, the application for judicial review is allowed. The impugned decision is set aside and a rehearing by a differently constituted panel of the CRDD is hereby ordered.
OTTAWA, Ontario
May 16, 1997
JUDGE
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1 13 Imm.L.R. (2d) 241 (F.C.A.).
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