Date: 20040430
Docket: IMM-2630-03
Citation: 2004 FC 649
Toronto, Ontario, April 30th, 2004
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
IYATHURAI PACKIAM and
KANDIAH IYATHURAI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Iyathurai Packiam (aged 65) and Kandiah Iyathurai (aged 68) are a Tamil couple from the north of Sri Lanka. They claim a well-founded fear of persecution based on race and ethnicity. The Refugee Protection Division of the Immigration and Refugee Board (RPD) denied their claim.
[2] The applicants have five sons, all of whom left Sri Lanka between 1993 and 1995, and have been accepted as refugees in Canada, Germany and Norway. Consequently, the applicants allege that they are targets for extortion. The basis for the extortion is the LTTE's position that not only can their sons send money, but because the sons are not available to serve the LTTE, the LTTE is entitled to "compensation".
[3] The applicants fear that if they are returned to Sri Lanka, they will experience extortion amounting to persecution at the hands of the LTTE. They also claim that they cannot live in Columbo because they do not have passes to do so and because they fear the government forces as a result of previous persecution by the authorities in 1997 related to the whereabouts of their sons.
[4] The couple allege that on two occasions in the past, they have been extorted. In 1995, just before the government's capture of Jaffna, the LTTE demanded 300,000 rupees. The applicants paid 100,000 and promised to get more, but the LTTE did not come back for it. In 1999, the LTTE demanded 500,000 rupees and gave them three months to get it from the sons. When the LTTE returned, the wife gave them 50,000 rupees worth of jewellery and the LTTE promised to come back. When they did, the couple still did not have the money. The LTTE took the husband away to another house where he was detained and assaulted. The wife borrowed 100,000 rupees and her husband was released.
[5] The RPD found the story of the applicants credible, but found that two instances of extortion over a four-year period, in these circumstances, did not amount to persecution. The board found that their fear of persecution is not well-founded because they do not fit the profile of young Tamils who are most at risk of arrest, detention and mistreatment by the security forces. In addition, the cease fire in Sri Lanka has mostly held and peace talks continue. The RPD found that the applicants are neither refugees nor persons in need of protection.
[6] The applicants identify six issues in their written memorandum. At the hearing, the oral arguments were more narrowly focussed. The respondent relies heavily on the fact that the RPD is a specialized tribunal and is entitled to significant deference regarding its findings of fact. Additionally, the Minister stresses that it is not the function of the court to re-weigh the evidence. I agree with the respondent's submissions on both counts.
[7] I have reviewed the record and particularly the portions of the transcript referred to by counsel for the respondent. I do not intend to deal with each of the arguments advanced by the applicants. I will confine my comments to those errors that lead me to conclude that the application should be allowed.
[8] The applicants submit that the RPD erred in finding that extortion was not persecution. The board determined that two incidents of extortion over a four-year period did not amount to persecution. The applicants say that there was no explanation for this assertion and that the determination cannot be rationally supported. Extortion cannot be excluded as a form of persecution. Moreover, it is said that not only was the extortion repeated, on the second occasion it involved violence and the deprivation of liberty. Furthermore, the board did not consider whether the confinement and assault constituted persecution because it considered it to be a single incident. However, argue the applicants, as it was part of the extortion, it was not an isolated incident. The applicants contend that the RPD gave inadequate reasons to address the major points in issue. It merely recited the evidence and stated a conclusion. Its reasoning process was not set out and did not reflect consideration of the main relevant factors.
[9] A review of the board's decision reveals that the analysis was indeed inadequate, particularly given the violence of the second extortion. Since the RPD believed that the two incidents took place, in my view, it was incumbent upon it to consider whether, absent effective state protection, these applicants would likely continue to be targets for extortion. Their previous acquiescence and the fact that the reasons they were targeted had not changed - the absence of the sons who were assumed to have the ability to pay - were not considered. Additionally, the failure of the board to consider how the violence and confinement in the second incident impacted on its persecution finding constituted an error.
[10] The applicants also submit that the RPD failed to consider the effect of beatings, detention, threats and extortion on claimants who are particularly vulnerable. The board must look at both the act itself and the effect on the victim. In this case, aside from the applicants' ages, all of the children have already left Sri Lanka. Thus, the applicants allege that they are more likely to be targeted for extortion because their children are perceived as able to pay and are not there to defend the parents.
[11] There was evidence before the RPD with respect to the alleged persecutors, specifically that the LTTE was aware that the sons were outside the country and consequently chose to exploit the parents. The personal circumstances of the applicants could have made them more vulnerable and the RPD did not consider this factor in its determination that extortion did not amount to persecution. Both the acts and the effects may (or may not) have been persecutory, but the board failed to take this into consideration.
[12] It may fairly be said that, due to the changed country conditions, the noted errors are immaterial. The difficulty with that proposition is that if the errors are found to be immaterial, the applicants will lose the benefit of any consideration under subsection 108(4) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. If the RPD had found past persecution, because of its finding with respect to changed country conditions, the board would have been obliged to apply the compelling reasons test both with respect to refugee grounds and the consolidated grounds of protection.
[13] It is the task of the RPD, not the court, to determine whether past persecution exists. However, in making its determination, it must provide its reasons for so doing. I agree with the respondent that the board's findings are reviewable on a patent unreasonableness standard of review. However, I also find, in the circumstances of this particular case, the board's failure to provide any analysis to substantiate its finding is patently unreasonable.
[14] Counsel did not suggest a question for certification and I agree that this matter turns on its own unique facts.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed and the matter is remitted to a differently constituted panel of the RPD for redetermination. No question is certified.
"Carolyn Layden-Stevenson"
___________________________
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2630-03
STYLE OF CAUSE: IYATHURAI, PACKIAM and
KANDIAH IYATHURAI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 28, 2004
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
APPEARANCES:
Micheal Crane For the Applicant
Rhonda Marquis For the Respondent
SOLICITORS OF RECORD:
Micheal Crane
Barrister and Solicitor
Toronto, Ontario For the Applicant
Morris Rosenberg
Deputy Attorney
General of Canada
Toronto, Ontario For the Respondent
FEDERAL COURT
TRIAL DIVISION
Date: 20040430
Docket: IMM-2630-03
BETWEEN:
IYATHURAI PACKIAM and
KANDIAH IYATHURAI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER