Date: 20030703
Docket: IMM-2970-02
Citation: 2003 FC 829
Toronto, Ontario, July 3rd, 2003
Present: The Honourable Madam Justice Heneghan
BETWEEN:
PUSHPARANY (PUSHPARANI) SRICHANDRADAS
KANTHAIYA SRICHANDRADAS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mrs. Pushparany (Pushparani) Srichandradas and Mr. Kanthaiya Srichandradas (the "Applicants") seek judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board") dated June 5, 2002. In its decision, the Board found the Applicants not to be Convention refugees.
[2] The Applicants are married to each other. They are citizens of Sri Lanka and left that country, together with their only child, daughter Abiramy, in November 2001. They sought Convention refugee status in Canada on the grounds of race, membership in a particular social group and their perceived political opinion.
[3] The Board found that the daughter of the Applicants was a Convention refugee on the grounds that she was a target for persecution by the Liberation Tigers of Tamil Eelam (the "LTTE") and the Sri Lankan Army ( the "SLA"). While the Board recognized that fear for the safety of their daughter motivated the Applicants to leave Sri Lanka, they concluded that this fear did not establish a well-founded fear of persecution for the Applicants themselves if they were to return to Sri Lanka. At the same time, the Board made no credibility findings relative to the Applicants.
[4] In my opinion, the Board committed a reviewable error in failing to consider the impact upon the Applicants, in Sri Lanka, of the finding that their daughter had been found to be a Convention refugee and would not accompany them back to Sri Lanka. The Board did not consider that this finding might expose the Applicants to persecutory treatment by the SLA and the Sri Lankan authorities on the basis of a suspicion that their daughter had been recruited by the LTTE. The Board did not apply the law which requires that a determination of Convention refugee status must be a forward-looking inquiry: see Mileva v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 398 (C.A.). The Board's conclusion that the SLA would not suspect them of supporting the LTTE in the future is a reversible error, having regard to the fact that the Applicants would be returned to Sri Lanka without their daughter. That is a circumstance that could feed suspicion by the SLA that the daughter has joined the LTTE.
[5] Furthermore, the male Applicant had already been suspected by the SLA as having information about the LTTE and had been detained, questioned and released only upon payment of a bribe. The Board erred in failing to analyse how the absence of the Applicant's daughter, were the Applicants to return to Sri Lanka without her, would affect their situation in light of the fact that the male Applicant had already been targeted for detainment and questioning by the SLA regarding the LTTE's activities.
[6] The Board had accepted the Applicants' testimony about the LTTE's attempts to recruit their daughter as credible. It made no negative credibility findings about the balance of the Applicants' testimony. In my opinion, the Board failed to consider the well-foundedness of the Applicants' claim in the context of all the evidence before it. Accordingly, this application for judicial review is allowed and the matter is remitted to a differently constituted panel of the Refugee Protection Division for redetermination. There is no question for certification arising from this application.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed and the matter is remitted to a differently constituted panel of the Refugee Protection Division for redetermination. There is no question for certification arising.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2970-02
STYLE OF CAUSE: PUSHPARANY (PUSHPARANI) SRICHANDRADAS
KANTHAIYA SRICHANDRADAS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 25, 2003
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: JULY 3, 2003
APPEARANCES BY: Ms. Lani Gozlan
For the Applicants
Mr. Brad Gotkin
For the Respondent
SOLICITORS OF RECORD: Max Berger & Associates
Toronto, Ontario
For the Applicants
Morris Rosenberg, QC
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030703
Docket: IMM-2970-02
BETWEEN:
PUSHPARANY (PUSHPARANI) SRICHANDRADAS
KANTHAIYA SRICHANDRADAS
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER