Date: 20070328
Docket: IMM-2710-06
Citation: 2007 FC 334
Ottawa, Ontario, March 28, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
RASIAH
SINNATHAMBY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Overview
[1]
This
is the second judicial review for this Applicant, Rasiah Sinnathamby. These
are the reasons for my Order pronounced orally granting this judicial review.
[2]
The
Applicant’s first refugee claim was denied. The matter was sent back to the
Immigration and Refugee Board (Board) because the Board had failed to analyze
the section 97 of the Immigration Refugee and Protection Act (IRPA),
S.C. 2001, c.27 aspect of the Applicant’s claim.
Background
[3]
Mr.
Sinnathamby is an elderly Tamil from Sri Lanka. He currently lives
with his daughter. He suffers from serious ailments including parasagittal and
sphenoid meningioma, heart failure and seizure, benign brain tumours, cognitive
alterations, epilepsy, high cholesterol, asthma, high blood pressure and
thyroid deficiency. His daughter had to testify on his behalf.
[4]
The
basis for his claim is that he would face extortion and violence at the hands
of the Liberation Tigers of Tamil Eelam (LTTE) because all of his children live
in developed countries and therefore he would be a target for the LTTE fundraising
activities. He had already experienced such threats of extortion in Sri Lanka. The
evidence at the Board hearing even included an effort by the LTTE to demand
money from his family in Canada. (Regrettably, the family did not report
this matter to the Canadian authorities.)
[5]
In
the Board’s decision, the Member discounted these extortion threats because the
latest ceasefire was in effect. While the Member acknowledged the independent
evidence of the LTTE fundraising/extortion activities, the Member found that
there was a viable Internal Flight Alternative (IFA) in Colombo because it
is not under the control of the LTTE.
[6]
The
decision recites the Applicant’s concern about living in Colombo, his lack of
familiarity with the city and language, his fear that the LTTE can reach him,
his deteriorating health and reliance on his daughter and absence of family in Colombo.
[7]
In
rejecting the Applicant’s claim for protection, the Member relied on the
decision in Ranganathan v. Canada (Minister of Citizenship and Immigration),
[2001] 2 F.C. 164, [2000] F.C.J. No. 2118 (C.A.) and drew
the following conclusions:
·
that
refusal to take up on IFA can only be justified if it would jeopardize the
claimant’s life or safety;
·
for
a claim to succeed, it must be based on persecution linked to a Convention
ground; and
·
lowering
the standard for an IFA from threats to life or safety undermines the
definition of a refugee and thus the distinction between refugee claims and
humanitarian and compassionate applications.
Analysis
[8]
The
standard of review in respect of an IFA finding is well settled as “patent
unreasonableness”. However, the standard of review in regards to the
applicable legal test is correctness (Ezemba v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1265, 2005 FC 1023).
[9]
There
are a number of difficulties with the Board’s decision both in regards to the
facts of an IFA, the legal test, applicable, and the nature of the analysis of
section 97 requirements.
[10]
The
Board put heavy reliance on the ceasefire and the LTTE’s lack of control of Colombo. That
consideration did not take into account that the risk was to Tamils who had
children living outside Sri Lanka. This risk does not
require control of a particular area, merely access to the targets. The
evidence before the Board in both the Human Rights Watch Report and the United States
Department of State (DOS) report is that the risk is real and that the LTTE
operates in the north and east of the country as well as in Colombo. The risk
to the target group is recognized in this Court’s decision in Christopher v.
Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 910, 2005 FC 730.
[11]
The
Board did not address whether the LTTE might continue to extort money from the
Applicant in Colombo. It simply
held that the LTTE did not control Colombo. This is an error to fail
to consider important evidence, to fail to address a relevant consideration and
therefore the finding of a safe IFA is patently unreasonable.
[12]
The
Board erred in its section 97 analysis by interweaving the section 96 requirements
of persecution on Convention grounds into its analysis. As indicated above,
the Board erred when it concluded that for a section 97 claim to succeed, the
Applicant must base its claim of persecution on Refugee Convention grounds.
[13]
To
the extent that the Board engaged in a section 97 analysis, it restricted
itself to considering whether Colombo was a safe flight
alternative in terms that being in Colombo would not jeopardize
the Applicant’s life or safety. The Board erred in not performing the
personalized assessment which counsel for the Respondent so eloquently
performed. Indeed the Board seemed to reject considering whether it would be
reasonable for the Applicant to flee to Colombo as this
would somehow lower the standard for an IFA finding.
[14]
The
consideration of whether an IFA is reasonable for an applicant cannot be a
disguised full force humanitarian and compassionate (H & C) application.
Likewise, it is not solely restricted to considerations of physical safety. An
IFA analysis focuses on whether the alternative place is safe from the risks
found to exist and whether it is reasonable for the particular applicant to
avail themselves of that alternative location in their home country.
[15]
As
Justice James Hugessen pointed out in Ramanathan v. Canada (Minister of
Citizenship and Immigration) [1998] F.C.J. No. 1210, the consideration of
whether an IFA is unreasonable or unduly harsh is bound to involve some of the
same factors as taken into account in an H & C application. If those
factors were excluded, the only thing left to consider is safety which is only
the first branch of the IFA test. Therefore, the Board erred in its
consideration of the test for an IFA and failed to consider whether for this
Applicant the IFA was unreasonable or unduly harsh.
[16]
For
all these reasons, this judicial review will be granted. There is no question
for certification.
ORDER
THIS COURT ORDERS
that this
application for judicial review is granted, the Board’s decision quashed, and
the matter of section 97 Immigration Refugee and Protection Act application
remitted back to the Immigration Refugee Board for a new determination to be
conducted by a differently constituted panel.
"Michael L. Phelan"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2710-06
STYLE OF
CAUSE: RASIAH SINNATHAMBY
and
MINISTER OF
CITIZENSHIP & IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 19, 2007
REASONS FOR ORDER
AND ORDER: PHELAN, J.
DATED: March 28, 2007
APPEARANCES:
JACKIE ESMONDE FOR
APPLICANT
AMY LAMBIRIS FOR
RESPONDENT
SOLICITORS
OF RECORD:
JACKIE ESMONDE FOR
APPLICANT
Barrister &
Solicitor
Toronto, Ontario
John H. Sims,
Q.C. FOR RESPONDENT
Deputy Attorney
General of Canada
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