Date: 20040331
Docket: IMM-4333-03
Citation: 2004 FC 500
Toronto, Ontario, March 31st, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
RASAMMAH NADARAJAH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Rasammah Nadarajah is an 82 year old widow from Sri Lanka. She is a Tamil, and has always lived in the North of the country. She claims to have a well-founded fear of persecution at the hands of the Sri Lankan military and its associates. The Refugee Protection Division of the Immigration and Refugee Board rejected Mrs. Nadarajah's claim, finding that she could live in Jaffna without a serious possibility of persecution. Mrs. Nadarajah seeks to have the Board's decision set aside on the basis that the Board ignored and misconstrued the evidence. She also asserts that the Board failed to provide adequate reasons for its decision.
Background
[2] Mrs. Nadarajah, her husband and her four children all lived in the village of Pungudutivu, in the Jaffna province of Sri Lanka. In July of 1983, Mrs. Nadarajah's elder son was killed by the Sri Lankan mob during anti-Tamil riots in Colombo. Her younger son narrowly escaped death in the same riots. He subsequently returned to Jaffna, where he started a business. In 1984, Mrs. Nadarajah's daughter and her family experienced problems with both Tamil militants and Sri Lankan forces. They fled to Switzerland, where they were accepted as refugees.
[3] In 1991, the Sri Lankan Army invaded Mrs. Nadarajah's village causing many people to flee. Mrs. Nadarajah and her husband stayed behind to take care of their property. The village was controlled by the Sri Lankan Army and the Eelam People's Democratic Party (EPDP), a Tamil group that evidently collaborated with the Sri Lankan forces. Several years later, the Sri Lankan navy started harassing innocent civilians. Mrs. Nadarajah testified that soldiers harassed her and her husband, making demands for money and food, while threatening the couple at gunpoint. Mr. and Mrs. Nadarajah complied with the soldiers' demands. According to Mrs. Nadarajah, the couple was targeted for extortion because they were elderly, and were perceived to be vulnerable, and because they had a daughter living in Switzerland.
[4] In 1998, Sri Lankan soldiers raped and killed the couple's Hindu priest. Mrs. Nadarajah testified that as a result of these type of ongoing atrocities, both she and her husband became "mentally upset", and her husband fell ill. Mrs. Nadarajah's husband died in August of 2000. Her second son had fled Sri Lanka in 1999, and had been accepted as a Convention refugee in Canada. Her other daughter had also fled Sri Lanka and now lives in Germany. With her husband's death, Mrs. Nadarajah was left alone in Sri Lanka.
[5] Mrs. Nadarajah testified that she became more fearful after her husband's death. In 2001, she was the victim of another extortion attempt. After this incident, Mrs. Nadarajah paid a bribe to pro-government EPDP members who took her to Jaffna. She stayed with a distant relative and then travelled to Colombo via ship and train. She left Sri Lanka in August of 2001. On her arrival in Canada, Mrs. Nadarajah applied for refugee protection, claiming that she had a well-founded fear of persecution based upon her ethnicity and her status as an elderly widow with no remaining family in Sri Lanka.
The Board's Decision
[6] The decision of the Board is very brief, consisting of eleven paragraphs. The Board accepted Mrs. Nadarajah's identity, noting that the determinative issue was whether there was a serious possibility that Mrs. Nadarajah would be persecuted if she were to return to Sri Lanka, and whether she was either a Convention refugee or a person in need of protection.
[7] The Board's summary of the facts consists of one paragraph. Although the Board does not say so explicitly, it does not appear that the Board had any concerns with respect to Mrs. Nadarajah's credibility, and it accepted that what she said had occurred had actually taken place.
[8] The Board then proceeded to its analysis of Mrs. Nadarajah's claim. This portion of the decision consists of two paragraphs. Central to the Board's decision was its finding that Mrs. Nadarajah was "an opportunistic extortion victim and not a target for persecution on a Convention ground." The Board found, on a balance of probabilities, that Mrs. Nadarajah did not flee Sri Lanka because of persecution, but because she feared living alone after her husband's death, and wanted to live where there were family members to care for her. The Board observed that family reunification is not part of the RPD's mandate. The Board concluded by finding that Mrs. Nadarajah did not have a well-founded fear of persecution, and that she could live in Jaffna without a serious possibility of persecution.
Issues
[9] Mrs. Nadarajah raises a number of issues in her application. In essence, however, she is asserting that the Board ignored and misconstrued the evidence in coming to its finding that she was neither a Convention refugee nor a person in need of protection, and that this finding was patently unreasonable.
Analysis
[10] Central to Mrs. Nadarajah's claim is her assertion that she was targeted for extortion, initially as part of an elderly couple, and then as an elderly widow, who was the parent of a child living in a First World country, and who, as a result, was perceived as having access to money.
[11] Although the Board does not say so explicitly, it seems that it accepted as truthful the testimony of Mrs. Nadarajah as to what happened to her in Sri Lanka. Certainly, a negative finding with respect tothe credibility of a refugee claimant must be stated in "clear and unmistakable terms": Hilo v. Canada (1991), 130 N.R. 236 (F.C.A.). The Board did not do so here.
[12] The Board's analysis of Mrs. Nadarajah's claim is very skimpy, and essentially consists of a series of findings, without any real explanation as to how those findings were arrived at. The Board did not accept that Mrs. Nadarajah was targeted for extortion because she was vulnerable, and because she had a child living in Switzerland. Instead, the Board found that Mrs. Nadarajah was "an opportunistic extortion victim", and not a target for persecution on a Convention ground. There is nothing in the decision that would explain how the Board came to this conclusion. There is no real analysis, nor is there any reference to the evidence. As a result, this finding cannot stand.
[13] The Board's conclusion that Mrs. Nadarajah was no longer at risk of persecution appears to have been premised on the fact that the Sri Lankan army is now in control of the Jaffna peninsula. No consideration was given to Mrs. Nadarajah's evidence that it was the Sri Lankan governmental authorities that were the agents of her persecution. As a result, the Board's finding in this regard is also patently unreasonable.
[14] As a consequence, the decision of the Board is set aside, and Mrs. Nadarajah's refugee claim is remitted to a differently constituted panel for redetermination.
Certification
[15] Neither party has suggested a question for certification, and accordingly none will be certified.
ORDER
THIS COURT ORDERS that:
1. For the reasons set out above, this application is allowed, and Mrs. Nadarajah's refugee claim is remitted to a differently constituted panel for redetermination; and
2. No serious question of general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4333-03
STYLE OF CAUSE: RASAMMAH NADARAJAH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 29, 2004
REASONS FOR ORDER
AND ORDER BY : MACTAVISH J.
DATED: MARCH 31, 2004
APPEARANCES:
Ms. Helen P. Luzius
FOR THE APPLICANT
Mr. Greg G. George
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Helen P. Luzius
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20040331
Docket: IMM-4333-03
BETWEEN:
RASAMMAH NADARAJAH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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