Date: 20071024
Docket: IMM-5899-06
Citation: 2007 FC 1102
Toronto, Ontario, October 24, 2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
VASANTHAKUMAR
MAHALINGAM
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant is a young Tamil male citizen of Sri Lanka. He claimed
Convention Refugee status in Canada. By a written decision dated October 4,
2006, a Member of the Immigration and Refugee Board determined that the
Applicant was not a Convention Refugee and not a person in need of protection,
thus the Applicant’s claim was rejected. The Applicant seeks judicial review
of that decision.
[2]
For
the reasons that follow, I find that the application is dismissed. There is no
question for certification. There is no order as to costs.
[3]
Applicant’s
Counsel raises only one issue which is stated at paragraph 2 of his Memorandum
as follows:
2. It is respectfully
submitted that there is one issue in this application, the particulars of which
are as follows:
a. the Board accepts evidence
regarding the applicant’s identity, profile and ethnicity as credible. It
rejects the refugee claim purely on “credibility” issues and the fact that “not
all young Tamil males from Sri Lanka” are persecuted. The Board fails, however, to conduct a
separate objective risk analysis of the claim pursuant to section 97(1)(a) and
(b) of the Immigration and Refugee Protection Act, (IRPA), based on the
applicant’s remaining credible evidence, which is precisely what he based his
refugee upon.
[4]
More
concisely, the issue can be stated:
“Did the Board fail to conduct
a proper separate objective risk analysis of the Applicant’s claim pursuant to
sections 97(1)(a) and (b) of the IRPA”
[5]
As
to the Applicant’s (claimant’s) identity, the Board did not make a definitive
finding. At page 1 of the Reasons, the Board says that the Applicant “purports
to be a national of Sri Lanka” and claims refugee protection based on race and
“imputed political opinion” and that he “claims a fear” of the Tamil Tigers and
government authorities of Sri Lanka. As to identity, it appears that the
Minister does not make an issue, on this application, that the Applicant is a
young Tamil male citizen of Sri Lanka.
[6]
The
Reasons of the Board began the analysis portion with the statement at page 3
that:
“The claimant’s evidence lacked
believability in several areas. This along with inconsistencies led to the
undermining of his credibility.”
[7]
The
Board proceeded with almost six pages of analysis with several examples to
support its findings of lack of credibility. At pages 9 and 10 of the Reasons,
the Board concluded:
In assessing the evidence the
panel finds that the series of inconsistencies have conspired to lead to the
conclusion that the claimant is not credible and that the inconsistencies have
arisen because his story over and over again to the same degree of accuracy as
would have been the case if it had really been his true experience. The
claimant’s lack of credibility also points to a lack of subjective fear which
is a prerequisite of all refugee claims.
Given this lack of subjective
fear therefore, and especially in light of the fact that there is no
documentary evidence before me which would suggest that all young Tamil males
are persecuted in Sri Lanka, I find that there is less than a mere possibility
that the claimant would be persecuted for a Convention ground should he return
to Sri Lanka today.
[8]
In
particular, as to sections 97(1)(a) and (b) of IRPA, the Board concluded at
page 10 of its Reasons:
In assessing whether the
claimant would face cruel and unusual treatment or punishment or a danger of
torture, I have taken into account counsel’s submissions as well as the
evidence regarding the fighting that has erupted once again in Sri Lanka. Apart from the fact that I
find the claimant not to be credible with regard to his allegations, I find
that the danger he would face because of the conflict that has once again
broken out, is no more than that of the general population and therefore find
on a balance of probabilities that there is no a reasonable change or a serious
possibility that the claimant would personally suffer harm within the meaning
of Subsection 97(1)(a) or (b) of the Immigration and Refugee Protection Act.
[9]
Applicant’s
counsel argues that the Board failed to make a clear finding as to the
Applicant’s identity. Counsel concedes that there was a negative finding as to
the Applicant’s credibility but argues that not all of the Applicant’s evidence
was found to lack credibility and that there was sufficient evidence left such
that the Board was required to engage in a separate and objective assessment as
to risk under section 97(1) on the basis of personalized risk to the Applicant.
[10]
This
type of argument has recently been considered by Justice de Montigny of this
Court in Ayaichia v. Canada (MCI), 2007 FC 239 where he summarized at
paragraph 19:
19 This case has been
repeatedly followed by other members of this Court. While it is always better
to analyze both sections 96 and 97 where an applicant has invoked the two
grounds in support of his or her claim, failing to do so will not always be
fatal to an otherwise sound decision. If the evidentiary basis for both claims
is the same and the applicant's story is not believed, there will be no need to
proceed to a separate 97 analysis, as there will be no evidence to ground the
applicant's claim that he or she is in need of protection: see, for example…
[11]
In
the present case, there was a general finding that the Applicant lacked
credibility. The Board, at page 10 of its Reasons gave specific and separate
consideration to sections 97(1)(a) and (b) of IRPA. While the reasoning is not
as detailed as the reasoning in the proceeding pages it is clear that the Board
gave separate consideration to personal risk. The Applicant has not shown, on
a standard of simple reasonableness, that the decision was wrongly made or
failed to consider material evidence that would have favoured the Applicant.
JUDGMENT
For the Reasons
provided;
THIS COURT ADJUDGES that:
1. The
application is dismissed;
2. There is
no question for certification;
3. There is
no order as to costs.
"Roger
T. Hughes"
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