Date: 19981014
Docket: IMM-4097-97
Between :
PARASAKTHY NAVARETNAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated September 8, 1997, in which the Board determined she was not a Convention refugee as defined in subsection 2(1) of the Immigration Act.
[2] The Board concluded that the claimant did not have a well-founded fear of persecution, especially given her age and infirmity. In the alternative, the Board did not consider that the alleged extortion amounts to persecution and accordingly, "at the very least" an internal flight alternative (IFA) exists for the claimant in Colombo.
[3] Upon reviewing the evidence, the Board's decision must be set aside on two grounds:
| 1. In determining whether the extortion experienced by the applicant constituted persecution, the Board did not consider the reason for the extortion and the motivation of the applicant in paying the extortion. Indeed, in Sinnathamby v. M.E.I. (November 2, 1993), IMM-179-93, Noël J. stated, at page 6: |
| Firstly, it was not open to the Board to exclude extortion from the indicia of persecution without looking into the reason for the extortion and the motivation of the applicant in paying the extortion fee. |
| Rather, the Board resolved this issue by relying upon two Federal Court decisions which dealt with different factual situations. |
| The factual determination of whether treatment constitutes persecution is the primary task of the Board. Such determinations must be made on a case-by-case basis. In the case at bar, I am of the view that the Board failed to properly determine whether extortion might constitute persecution for this particular applicant. As such, the Board erred in law. |
| 2. The Board's finding that the applicant had a reasonable IFA was made without regard to an important piece of evidence before it. The Board's finding regarding an IFA for the applicant hinged on its belief that the applicant would be able to access medical services. However, the evidence relied upon by the Board was dated January 1997. The most recent information before the Board related to this topic was dated April 1997 and it stated the following: |
| There are no social services available to the elderly Tamils in Colombo who are originally from the North or East. There is no distinction between young and old displaced Tamils. (Page 209 of the Record.) |
| There are no possibilities of newly arrived Tamils in Colombo staying permanently or getting any benefits during their stay. (Page 207 of the Record.) |
| The medical care availability is an important factor considering the applicant's condition. In determining whether the applicant could settle safely in Colombo, the most up-to-date information must be considered. Here, such up-to-date information was not even mentioned by the Board. |
[4] In my view, the above errors have tainted the entire decision, which is therefore set aside. Accordingly, a rehearing of the matter by a differently constituted panel will be ordered.
[5] Given the above findings, I agree with counsel for the applicant that this matter does not raise any question of general importance for the purpose of certification.
JUDGE
OTTAWA, ONTARIO
October 14, 1998