Ottawa, Ontario, March 15, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
BALASINGAM FRANKLIN SUPIRAMANIAM
MARY CONSTANCE JEYARATNAM
Applicants
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Refugee Protection Division of the Immigration and Refugee Board (RPD) found that neither Mr. Balasingam Franklin Supiramaniam nor his wife, Mary Constance Jeyaratnam, were Convention refugees or persons in need of protection as defined by section 97 of the Immigration and Refugee Protection Act, S.C. 2001, c-27 (Act). While the RPD accepted that the claimants were citizens of Sri Lanka of Tamil ethnicity and appears to have accepted that they “could well” have been a victim of extortion by the Liberation Tigers of Tamil Eelam (LTTE), the RPD found that Mr. Supiramaniam and his wife had embellished their claims of extortion. It also found that Mr. Supiramaniam and his wife had an internal flight alternative in Colombo.
[2] This application for judicial review is allowed because of the failure of the RPD to properly consider the documentary evidence before it as to the risk of extortion faced by Tamils not only in Jaffna, where the claimants lived, but also in Colombo. Before dealing with this issue, there are brief comments to be made concerning the credibility findings of the RPD.
[3] It is well-settled law that credibility findings made by the RPD are entitled to the greatest level of deference upon judicial review. Credibility findings made by the RPD may only be interfered with if they are patently unreasonable. I am satisfied that a number of the credibility findings made by the RPD in this case are patently unreasonable. Patently unreasonable findings include the following:
1. The claimants arrived in Canada on June 17, 2001. They claimed refugee protection approximately 3 weeks later and explained to the RPD that they had waited three weeks because they were told that they could make their claim at any time. Having acknowledged the correctness of that advice which had been given to the claimants, it was patently unreasonable of the RPD to then find “[t]he claimant’s response does not indicate that … he was seized by fear. The tribunal continues finding that his story of persecution is not to be believed.”
2. Mr. Supiramaniam testified that he had not contacted his brother in Sri Lanka since coming to Canada because he wanted to avoid creating problems for his brother from the LTTE. It was patently unreasonable for the RPD to conclude from that testimony “their behaviour does not correspond to that of people afraid for their security.”
3. Mr. Supiramaniam admitted that when he went to the Sri Lankan army in order to obtain a pass that would enable him and his wife to travel from Jaffna to Colombo, he told army officers that the pass was required because his children were abroad and it was also “for retirement”. It was patently unreasonable for the RPD to conclude from Mr. Supiramaniam’s statement to the army that this explanation was likely the “true reason” for leaving Sri Lanka. This inference seems to be based on the premise that Mr. Supiramaniam should have told the army his true reason for leaving Sri Lanka: that he no longer wanted to give money to the LTTE. Nothing can reasonably be inferred from the fact Mr. Supiramaniam lied to the army about his reason for leaving Sri Lanka.
[4] Notwithstanding these errors, one credibility finding made by the RPD cannot be said to be patently unreasonable. Mr. Supiramaniam’s testimony to the RPD, given in January of 2006, was consistent with the information contained in his Personal Information Form (PIF) prepared in 2001. However, in July of 2004, Mr. Supiramaniam was interviewed by immigration officers for the purpose of establishing whether he should be excluded from refugee protection under section F of Article 1 of the United Nations Convention Relating to the Status of Refugees. During that apparently brief telephone interview, Mr. Supiramaniam was recorded in the officers’ notes to have said that he was only asked to pay money to the LTTE on two occasions. The RPD relied upon this evidence to conclude that all other testimony about extortion was an embellishment. That is a conclusion that I may well not have drawn, given the consistency between Mr. Supiramaniam’s oral testimony and his PIF and the very special circumstances of the 2004 interview. That said, I cannot find the conclusion drawn by the RPD on this point to be patently unreasonable.
[5] Turning to the issue which is determinative of this application, the jurisprudence of the Federal Court of Appeal establishes that a finding of incredibility does not prevent a person from being a refugee if other evidence establishes both the subjective and objective branches of the test for refugee status (see: Attakora v. Canada (Minister of Employment and Immigration), (1989) 99 N.R. 168).
[6] Having accepted the claimants’ identity and the fact that they had been extorted on at least two occasions by the LTTE, the RPD was obliged to assess all of the documentary evidence before it that dealt with the risk of extortion Tamils, such as Mr. Supiramaniam and his wife, might be subject to if they were required to return to Sri Lanka. By failing to do so, the RPD reached its decision without regard to all of the evidence before it. For a recent review of Federal Court jurisprudence on this point, please see the reasons of my colleague Madame Justice Mactavish in Sivalingam v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 965; 2006 FC 773.
[7] The documentary evidence before the RPD included the following:
1. The 2003 and 2004 United States Department of State Reports on Sri Lanka which confirm that the LTTE continues to be responsible for extortion.
2. The Sri Lanka Monitoring Mission (SLMM) reported that the third most common complaint made to the SLMM about the LTTE was that it violated the cease-fire agreement by extorting money.
3. The RPD’s document entitled “Sri Lanka Assessment” noted that members of the LTTE abducted people for ransom and forced people to provide them with food and money.
4. Both an Immigration and Refugee Board Response to Information Request (LKA100506.E) and the “Report on Fact-Finding Mission to Sri Lanka” by the Danish Immigration Service reported that all Tamil paramilitary groups have offices in Colombo and that the Eelam People’s Democratic Party engages in extortion in Colombo’s Tamil neighbourhoods. Also, there were numerous reports of extortion by the LTTE in the north and east.
[8] In view of this information, the RPD was obliged to consider whether, even if their testimony was embellished, the country condition reports established that the claimants had a well-founded objective basis for their fear of persecution.
[9] With respect to the RPD’s finding of an internal flight alternative in Colombo, this is the second decision of the RPD regarding the applicants’ claim for protection. The first decision was set aside by my colleague Mr. Justice Phelan in reasons reported at 2005 FC 1264. At paragraphs 14 and 15 he wrote:
14. Without a consideration of the central basis for the claim and without considering whether this fear of extortion may be relevant if the Applicant were to live in Colombo, the RPD cannot conclude that Colombo is a "safe haven". If the RPD had rejected the claim of extortion on a proper basis, then its IFA finding might be sustainable.
15. In my view there must be some consideration of an unrejected basis of a claim in the context of an IFA. In order for the RPD's decision on Colombo as an IFA to be "bullet-proof" -- as claimed by the Respondent -- the RPD must conclude that the fear of extortion would not be reasonably based if the Applicant were to live there. Or in other words, that Colombo is a safe haven from extortion from the LTTE.
[10] In the present case, in the context of considering the existence of an internal flight alternative in Colombo, the RPD only considered whether the LTTE would pursue the claimants in Colombo. The RPD noted “no documents were adduced to show that the LTTE pursues people in Colombia who have not made payments to them.” With respect, the RPD has again failed to consider whether or not Colombo is a safe haven from extortion for Tamils, such as the applicants, who are returning from abroad. This is a material error in view of the documentary evidence of extortion occurring in Colombo’s Tamil neighbourhoods.
[11] The application for judicial review is therefore allowed. Counsel posed no question for certification and I agree that no question arises on this record.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed and the decision of the Refugee Protection Division dated January 20, 2006 is hereby set aside.
2. The matter is remitted for redetermination in accordance with these reasons by a differently constituted panel of the Refugee Protection Division.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-651-06
STYLE OF CAUSE: BALASINGAM FRANKLIN SUPIRAMANIAM and MARY CONSTANCE JEYARATHAM, applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION, Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 17, 2007
SUPPLEMENTARY WRITTEN SUBMISSIONS: JANUARY 19, 26, 29,
FEBRUARY 16 and
MARCH 5, 2007
APPEARANCES:
KUMAR S. SRISKANDA FOR THE APPLICANTS
AMY LAMBIRIS FOR THE RESPONDENT
SOLICITORS OF RECORD:
KUMAR S. SRISKANDA FOR THE APPLICANTS
BARRISTER & SOLICITOR
SCARBOROUGH, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA