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Federal Court |
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Cour fédérale |
Toronto, Ontario, October 28, 2010
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
FATHIMA RIZWANA MOHAMED NAZEEN
MOHAMED RIFAAD MOHAMED RAZAKDEEN
MOHAMED RISHFF MOHAMED RAZAKDEEN
MOHAMED RISHFA MOHAMED RAZAKDEEN
MOHAMED RASHAD MOHAMED RAZAKDEEN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant in the present Application is a Tamil speaking Muslim who has wealth as a result of being a successful gem merchant in Sri Lanka. The Applicant claims refugee protection as a member of a social group characterized as wealthy Tamil speaking Muslims subject to extortion in Sri Lanka. In support of his claim, the Applicant gives credible and accepted evidence that, prior to fleeing for Canada in February 2009, he was twice kidnapped in 2008 and was forced to pay some 20 million rupees of extortion money in order to be released.
[2] In support of his claim before the Refugee Protection Division (RPD), Counsel for the Applicant made the following submissions:
The Claimant, according to his testimony, he’s an affluent person, a rich person in the Sri Lanka context. And since 2006-2007 according to the documentary evidence since the new government came to power, the extortion, abduction for the purpose of ransom, especially the Tamils and the Tamil-speaking Muslims outside the north of (inaudible) became a common factor and that is fully supported by the documentary evidence.
(Tribunal Record, p. 373)
Neither before the RPD nor in the hearing of the present Application is the truth of the contents of this argument contested.
[3] In the decision under review the RPD acknowledges the nature of the Applicant’s claim by repeating the following statement contained in the Applicant’s Personal Information Form (PIF):
In early 2007, the situation changed. It became obvious that Muslims were openly kidnapped, extorted and those who refused to pay were killed. Many Muslim businessmen known to me were kidnapped and some even left the country for good.
However, immediately following, the critical finding made by the RPD in rejecting the Applicant claim is stated as follows:
I find that the claimant was targeted as part of a large group of business persons who are perceived to be well off. That does not make his risk a personalized risk.
(Decision, p. 4)
[4] The Applicant’s personalized claim for refugee protection under the IRPA required the RPD to make a determination, on critical analysis of the evidence, on two issues having regard to the Applicant’s social group identity: whether pursuant to s. 96 there is more than a mere possibility that the Applicant will be persecuted, and whether pursuant to s. 97 there is a probability of risk, should he be required to return to Sri Lanka. I find that the RPD failed to meet the obligation on either issue.
[5] As a result, I find that the decision under review is made in reviewable error.
ORDER
The decision under review is set aside and the matter is referred back to a differently constituted panel for re-determination.
There is no question to certify.
“Douglas R. Campbell”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6042-09
STYLE OF CAUSE: MOHAMED RAZAKDEEN ABDUL AZIZ, FATHIMA
RIZWANA MOHAMED NAZEEN, MOHAMED
RIFAAD MOHAMED RAZAKDEEN, MOHAMED
RISHFF MOHAMED RAZAKDEEN, MOHAMED
RISHFA MOHAMED RAZAKDEEN, MOHAMED
RASHAD MOHAMED RAZAKDEEN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 27, 2010
APPEARANCES:
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Kumar S. Sriskanda
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Bradley Bechard
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SOLICITORS OF RECORD:
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KUMAR S. SRISKANDA Barrister & Solicitor Scarborough, Ontario
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Myles J. Kirvan Deputy Attorney General of Canada Toronto, Ontario |