Federal Court Decisions

Date: 20070320

Docket: IMM-2573-06

Citation: 2007 FC 297

Ottawa, Ontario, March 20, 2007

PRESENT:     The Honourable Mr. Justice Phelan

BETWEEN:

NESMALAR GNANASEKARAM

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]               The Immigration and Refugee Board (Board) rejected the Applicant’s claim for refugee status which was principally based on her fear of being recruited by the LTTE in northern Sri Lanka. This judicial review questions the Board’s findings on the credibility and plausibility of her recruitment by the LTTE and the Board’s conclusions as to a viable IFA (internal flight alternative).

II.         BACKGROUND

[2]               The Applicant is a 26-year old Tamil from northern Sri Lanka in the Kilinochchi area. Two of her brothers have been missing since the 1990s. She claimed that, because of accusations that her family was supporting the LTTE, they were moved to Malawi. She also claimed that she had been forced to dig bunkers and cook for the LTTE. Following the cease fire, she and her family moved back to Kilinochchi.

[3]               In December 2004, the LTTE launched a propaganda drive to recruit new members. The Applicant was asked to join the LTTE and therefore she fled.

[4]               The Board doubted that the Applicant would be recruited by the LTTE because she is a woman, there was a cease fire in place and the LTTE would have recruited her one remaining brother at home rather than her.

[5]               The Board also rejected her fear of the Army, of which nothing more need be said. The Board concluded that the Applicant was lying and, without any reasons, concluded that, even if she was credible, she could move to Colombo.

III.       ANALYSIS

[6]               The standard of review for credibility findings has consistently been held to be patent unreasonableness (Khan v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 47 (QL)), and for plausibility reasonableness (Dennis Courtney v. Canada (Minister of Citizenship and Immigration), 2007 FC 252). With respect to IFAs, the standard, as regards findings of fact is patent unreasonableness but as to whether the facts meet the legal test, reasonableness simpliciter (Nakhuda v. Canada (Minister of Citizenship and Immigration), 2006 FC 698 at para. 8).

A.        Recruitment

[7]               The Applicant’s testimony set forth the LTTE’s recruiting efforts in 2004, which evidence is consistent with the documentary evidence. While some of that evidence focussed on recruitment of children, the evidence also showed LTTE efforts to recruit adults including elderly civilians and women.

[8]               The Board conceded that the LTTE sometimes recruited women, yet it went on to totally reject her claim on credibility grounds without adequate explanation. There was evidence that recruitment was continuing despite the cease fire and there was no explanation of why this aspect of her claim was rejected. Finally, there was no analysis of why her brother would be so much more likely to be recruited that her likelihood of recruitment was implausible. The Board’s credibility findings and its plausibility conclusions do not meet the standard of review, indeed both are patently unreasonable.

B.         Internal Flight Alternative

[9]               The Board makes no analysis of the risk to the Applicant in Colombo. While the burden of establishing that an IFA does not exist rests on an applicant, in this case there was evidence of danger in Colombo which is not addressed.

[10]           The Applicant’s own reasons for not wanting to go to Colombo (the absence of friends) is not, in and of itself, compelling. The Board does not assess her personalized situation even though the LTTE’s activities in Colombo were advanced as grounds.

[11]           For these reasons, the judicial review is granted, the Board’s decision is quashed and the matter referred back to a differently constituted panel for a new determination. There is no question for certification.

JUDGMENT

            IT IS ORDERED THAT the application for judicial review is granted, the Board’s decision is quashed and the matter is to be referred back to a differently constituted panel for a new determination.

“Michael L. Phelan”

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-2573-06

STYLE OF CAUSE:                          NESMALAR GNANASEKARAM

                                                            and

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      March 8, 2007

REASONS FOR JUDGMENT:       Phelan J.

DATED:                                             March 20, 2007

APPEARANCES:

SOLICITORS OF RECORD: