Date: 20060802
Docket: IMM-6088-05
Citation: 2006 FC 946
Ottawa, Ontario, August 2,
2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
KANDIAH
SIVANATHAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
Applicant’s refugee application was denied by the Immigration and Refugee Board
(Board) because of concerns about credibility and the availability of an
internal flight alternative (IFA). This is the judicial review of the Board’s
decision.
II. Facts
[2]
The
Applicant is a male Tamil citizen from Northern Sri Lanka in his
mid-sixties. He based his refugee claim on fear of persecution from both the
Sri Lankan authorities and from the LTTE (Tamil Tigers).
[3]
In
his Personal Information Form (PIF) the Applicant recites a history of threats
and extortion from both groups. As a result, three of his four children left Sri Lanka. He remained
hopeful that peace would return to his country.
[4]
The
Applicant further claimed that his problems recommenced two years after he
hired an individual (Mohan) to work in his restaurant, who was suspected of
being an affiliate of the Tamil Tigers. As a result, he claimed, the Sri Lankan
army suspected him of being a Tamil Tiger supporter.
[5]
The
Board questioned the credibility of his story. It found it incredible that the
Applicant would hire a young Tamil of military age, a person of interest to
both the army and the Tamil Tigers, particularly given his alleged past
difficulties.
[6]
The
Board also found that the Applicant had an IFA in Colombo. He was an
experienced business man who had re-established his businesses on numerous
occasions. The Board found that he could find the necessary funds to start a
business and that none of the other alleged impediments to an IFA had been
established.
III. Analysis
[7]
As
to issues of credibility, the standard of review of patent unreasonableness has
been well-established in Aguebor v. Canada (Minister of
Employment and Immigration) (1993), 160 N.R. 315. As to the issue of a
viable IFA, the inquiry is a factual one which, if made on a proper analysis of
the materials before it, this Court has held the standard of review also to be patent
unreasonableness. (See Sarker v. Canada (Minister of
Citizenship and Immigration), 2005 FC 353, [2005] F.C.J. No. 435 (QL))
[8]
The
Applicant says that the Board failed to address his fear of extortion. He
further relies on my judgment in Supiramaniam v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1264, [2005] F.C.J. No. 1525 (QL)
where a male Tamil in his sixties feared extortion by the LTTE because he had
children outside Sri Lanka and therefore he was deemed to have money to support
the LTTE.
[9]
The
difficulty with the Applicant’s argument is that extortion was not the basis of
his fear of persecution. The core of his claim was that he had hired a young
Tamil and he would be viewed as a supporter of the Tamil Tigers – not that the
Tamil Tigers would extort money from him.
[10]
This
factual basis is a principal reason for distinguishing this case from that of Supiramaniam,
above, where extortion was at the very heart of the refugee claim.
[11]
The
Board had reasonable grounds on which to question the credibility of the claim.
The submission that reverse order questioning prevented the Applicant from
making out his case fully is not sustainable on the facts here. The Applicant
chose, starting with his PIF, to lay the emphasis on his fear flowing from the
hiring of Mohan. That ground was underscored in his testimony. The Applicant
cannot recast his case at the judicial review stage.
[12]
In
respect of the IFA, the Applicant attempted to rebut the presumption in favour
of an IFA on the grounds that he could not find the funds to re-establish
himself in Colombo which the
Board did not reasonably accept given his past experience. He did not base his
claim of no IFA on the grounds of extortion.
[13]
Lastly,
the Applicant says that the Board did not do a separate s. 97 Immigration
and Refugee Protection Act analysis. While the Board did not refer
specifically to s. 97 (nor is it required), the Board did do what was required
– it considered the s. 97 grounds. Its penultimate paragraph held:
Further, the panel finds that there is
not a reasonable chance or serious possibility that the claimant will be
persecuted, if he returns to Sri
Lanka.
[14]
Therefore,
this application for judicial review will be dismissed. There is no question
for certification.
JUDGMENT
IT IS ORDERED THAT this
application for judicial review is dismissed.
“Michael
L. Phelan”
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