Date: 20070926
Docket: IMM-5013-06
Citation: 2007 FC 967
Toronto, Ontario, September 26,
2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
RAGINI
RAJESWARAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ragini
Rajeswaran is a 45 year old Tamil woman, originally from Sri Lanka, who came to
Canada after having allegedly spent some seven years in India. Upon her
arrival in this country, she claimed refugee protection.
[2]
The
Refugee Protection Division of the Immigration and Refugee Board rejected Ms.
Rajeswaran’s claim. The Board found that there were serious credibility
concerns relating to her sojourn in India, and questions as to
her whereabouts during the years immediately prior to her arrival in Canada. These
concerns led the Board to conclude that she did not have a subjective fear of
persecution in Sri Lanka, with the result that her claim for protection
was dismissed.
[3]
For
the reasons that follow, I am satisfied that some of the Board’s negative
credibility findings were patently unreasonable. Moreover, the Board erred in
failing to properly assess the risk faced by Ms. Rajeswaran in Sri Lanka, in light of
her past experiences in that country. As a consequence, the application for
judicial review will be allowed, and the Board’s decision set aside.
Background
[4]
Ms.
Rajeswaran testified that while she was living in Sri Lanka, her brother
was shot and killed by the Indian Peace Keeping Forces. She says that she
herself was forced to work for the Liberation Tigers of Tamil Eelam, having
been threatened with severe punishment should she refuse. Ms. Rajeswaran also
claims that the LTTE extorted money from her and her family.
[5]
Moreover,
Ms. Rajeswaran stated that she was detained by the Sri Lanka Armed Forces on
two separate occasions, during which time she was physically assaulted. After
her release from custody, she says that she was approached by representatives
of the LTTE, who wanted to know if she had given any information to the Sri Lanka
authorities. The LTTE also exerted pressure on Ms. Rajeswaran to join them.
[6]
Fearing
for her life, Ms. Rajeswaran says that she left Sri Lanka in 1998 for India, where she
remained until coming to Canada to seek refugee protection in 2005. She
was unable to seek refugee protection in India, as that
country is not a signatory to the Refugee Convention. While Ms. Rajeswaran was
in India, she married
a fellow Sri Lankan citizen. Despite their lack of status in that country, the
couple was able to live and work in India by paying bribes to the
appropriate officials.
[7]
Ms.
Rajeswaran testified that she fears returning to Sri Lanka. Having
already been arrested on two occasions by the Sri Lanka authorities,
she fears that they may arrest her again. She also claims to fear that the
LTTE may continue to try to recruit her. Finally, she fears getting caught in
the cross-fire, in light of the deteriorating situation in Sri Lanka.
[8]
While
the Board evidently had concerns with respect to the credibility of Ms.
Rajeswaran’s testimony insofar as it related to the period between 1998 and
2005, it did not make a clear finding that her testimony regarding events in Sri Lanka prior to
1998 was not credible. As such, the Board appears to have accepted that what
Ms. Rajeswaran says happened to her in that country actually took place.
Analysis
[9]
I
am of the view that several of the Board’s negative credibility findings with
respect to Ms. Rajeswaran’s alleged lack of subjective fear are problematic.
For example, Ms. Rajeswaran testified that she obtained a passport in 1990,
with a view to going to work in another country to help support her ailing
mother and younger siblings. According to the Board, Ms. Rajeswaran then
stated that she decided not to go, because her mother was ill and her siblings
were young. The Board found this testimony to be ‘contradictory’, and held
that it negatively affected her credibility.
[10]
This,
in my view, is a patently unreasonable finding. A review of the transcript
discloses that what Ms. Rajeswaran actually said was that while she had
initially intended to go to work overseas to support her ailing mother and
younger siblings, when her mother’s health took a turn for the worse, she
decided not to go. There is nothing inherently inconsistent about this
evidence.
[11]
Ms.
Rajeswaran also testified that when the situation in India deteriorated for
herself and her husband, they became fearful that they would be sent back to Sri Lanka where
conditions were worsening. As a result, she decided to come to Canada to seek
refugee protection. She stated that her husband is still in India, but that he
is trying to make arrangements to leave that country to come to Canada.
[12]
With
respect to Ms. Rajeswaran’s evidence regarding her husband’s situation, the
Board noted the fact that he was still in India, stating
“Why? It appears to be a financial reason but the panel also notes by the
claimant’s own evidence that he is working as a vegetable salesman.”
[13]
With
respect, the fact that Ms. Rajeswaran’s husband has been able to support
himself in India by selling vegetables does not mean that he has the financial
resources readily available to him to pay for an agent to help him get to Canada. The
Board’s finding in this regard is patently unreasonable.
[14]
Finally,
the Board noted that a number of Sri Lanka nationals had returned
to Sri
Lanka
during 2002 and 2003, suggesting that this called into question the sincerity
of Ms. Rajeswaran’s subjective fear of persecution. There was, however, no
evidence before the Board as to whether the individuals in question were
similarly situated to Ms. Rajeswaran.
[15]
That
is, there is no way of knowing whether any of the individuals who had returned
to Sri
Lanka
had experienced persecution in the past at the hands of the LTTE and Sri Lankan
authorities. In the absence of such evidence, the fact that others had
returned to Sri Lanka was irrelevant to Ms. Rajeswaran’s claim: see Sabaratnam
v. Canada (Minister of
Employment and Immigration), [1992] F.C.J. No. 901.
[16]
While
the findings discussed above were not the only reasons given by the Board for
doubting that Ms. Rajeswaran had a subjective fear of persecution in Sri Lanka, they were
clearly viewed by the Board as having a significant negative impact on her
story. As such, I am satisfied that the Board’s finding that Ms. Rajeswaran
did not have a subjective fear of persecution cannot stand.
[17]
Moreover,
having seemingly accepted that Ms. Rajeswaran had faced past persecution at the
hands of both the LTTE and the Sri Lankan authorities, it was incumbent on the
Board to assess whether her stated fear of future persecution at the hands of
both agents of persecution was well-founded. This the Board utterly failed to
do.
Conclusion
[18]
For
these reasons, the application for judicial review is allowed.
Certification
[19]
Neither
party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is allowed, and the matter is remitted to a
different panel for re-determination; and
2.
No serious question of general importance is certified.
“Anne Mactavish”
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5013-06
STYLE OF CAUSE: RAGINI
RAJESWARAN v.
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 25, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: Mactavish J.
DATED: September 26, 2007
APPEARANCES:
Michael Crane For the Applicant
Jamie Todd For the Respondent
SOLICITORS
OF RECORD:
Michael Crane
Barrister &
Solicitor
Toronto, Ontario For the Applicant
John H. Sims,
Q.C.
Deputy Attorney
General of Canada For the Respondent
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