Date: 20031001
Docket: IMM-4910-02
Citation: 2003 FC 1137
Toronto, Ontario, October 1st, 2003
Present: The Honourable Madam Justice Snider
BETWEEN:
NAVENTHAN BALASUBRAMANIAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Naventhan Balasubramaniam (the "Applicant") is a thirty-year old Hindu Tamil male citizen of Sri Lanka. He claims refugee protection on the grounds of race, particular social group and imputed political opinion. He fears the Liberation Tigers of Tamil Eelam ("LTTE"), the army and the security forces.
[2] By decision dated September 25, 2002, the Refugee Protection Division of the Immigration and Refugee Board (the "Board") determined that the Applicant was not a Convention refugee or a person in need of protection.
[3] While apparently accepting the Applicant's identity as a young Tamil male, the Board found that credibility was the determinative issue in this claim. The Board found the Applicant not credible. Since the Board found the Applicant not credible, it found that there was no support for his claim of subjective or objective fear and rejected his claim for protection accordingly.
[4] The Applicant makes application for an order setting aside the decision and referring the matter back for reconsideration by a differently constituted panel.
Issues
[5] The Applicant raises two issues:
1. Did the Board err by failing to consider the risk to the Applicant as a young Tamil male from the east of Sri Lanka, given that the Board accepted his identity?
2. Did the Board err by finding the Applicant not credible?
Analysis
Issue #1: Did the Board err by failing to consider the risk to the Applicant as a young Tamil male from the east of Sri Lanka, given that the Board accepted his identity?
[6] In the Applicant's submission, the Board failed to turn its mind to whether the Applicant would be at risk as a young Tamil male.
[7] In the Respondent's submission, documentary evidence about country conditions generally cannot form the basis for a refugee claim without some link to credible evidence related to the Applicant (Sheikh v. Canada (Minister of Employment and Immigration) (C.A.), [1990] 3 F.C. 238, [1998] F.C.J. No. 604 (QL); Tharmalingam v. Canada (Minister of Citizenship and Immigration), [2003] FCT 727, [2003] F.C.J. No. 943 (T.D.) (Q.L.); Neame v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 378).
[8] In my view, the Board committed a reviewable error by failing to consider the risk to the Applicant as a young Tamil from eastern Sri Lanka.
[9] The Board appears to have accepted the Applicant's identity as a young Tamil male from eastern Sri Lanka. However, the Board found the Applicant "not to be credible, hence failing to support his claim to fear." This sentence is the only analysis conducted by the Board on the Applicant's objective and subjective fear of persecution in Sri Lanka. In particular, the Board did not address whether, as a Tamil male from eastern Sri Lanka, the Applicant would be at risk. The Board also made no reference to the documentary evidence describing this potential risk.
[10] This Court has held that, where the identity of a young Tamil is accepted, the Board is under an obligation to assess the risk to the claimant if returned to Sri Lanka, even if the claimant's personal account of what happened to him is found not credible (Seevaratnam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 694 (T.D.) (QL); Kamalanathan v. Canada (Minister of Citizenship and Immigration), 2001 FCT 553, [2001] F.C.J. No. 826 (T.D.) (QL); Jeyaseelan v. Canada (Minister of Citizenship and Immigration), 2002 FCT 356, [2002] F.C.J. No. 458 (T.D.) (QL); Mylvaganam v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1195 (T.D.) (QL)).
[11] I adopt the reasoning of Mr. Justice Gibson in Mylvaganam, supra, where he allowed an application for judicial review, stating at paragraph 10 as follows:
The CRDD had before it substantial documentary evidence attesting to the difficulties that all young Tamil males, particularly those from the north, face in Sri Lanka. Even if it rejected outright, as it did, the applicant's own alleged experience of persecution, in its analysis in support of its decision in this matter, it does not appear to have rejected the applicant's identity as a young Tamil male from the north of Sri Lanka. Having accepted this identity, the CRDD then ignored the substantial evidence before it that a person such as this applicant might well be subjected to persecution if he were required to return to Sri Lanka and that therefore he might very well have had not only a subjective fear of persecution but also potentially a well-founded objective basis to that fear. In failing to so much as even consider this possibility, I am satisfied that the CRDD reached its decision in this matter without taking into account all of the evidence that was before it.
[12] In my view, the cases referred to by the Applicant are either not extremely relevant (Sheikh, supra) or distinguishable (Tharmalingam, supra).
[13] Therefore, the Board committed a reviewable error by failing to assess the well-foundedness of the Applicant's fear of persecution. This error is sufficient to allow this application for judicial review. There is no need to deal with the other issue raised in this application.
Question for Certification
[14] Neither party proposed a question for certification. None will be certified.
ORDER
THIS COURT ORDERS THAT:
1. This application is allowed; the decision of the Board set aside and the matter referred back for reconsideration by a differently constituted panel.
2. There is no question certified.
"Judith A. Snider"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4910-02
STYLE OF CAUSE: NAVENTHAN BALASUBRAMANIAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: OCTOBER 1, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: SNIDER J.
DATED: OCTOBER 1, 2003
APPEARANCES BY: Mr. Micheal Crane
For the Applicant
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD: Micheal Crane
Barrister & Solicitor
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20031001
Docket: IMM-4910-02
BETWEEN:
NAVENTHAN BALASUBRAMANIAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER