Date: 20050603
Docket: IMM-4886-04
Citation: 2005 FC 810
Toronto, Ontario, June 3rd, 2005
Present: The Honourable Mr. Justice Campbell
BETWEEN:
BALASINGAM SINNIAH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present case, the Applicant, a fifty-seven year old Tamil man and citizen of Sri Lanka, claims refugee protection on the basis of his fear of persecution by the LTTE. In its decision, the Refugee Protection Division ("RPD") accepted the Applicant's claim if he were to return to Jaffna, but also found that he has an Internal Flight Alternative ("IFA") in Colombo.
[2] The RPD accepted that the past persecution which the Applicant suffered in Jaffna is a direct result of him being a skilled mechanic. The LTTE forced the claimant to work with very little financial remuneration over the years in preparing secret compartments in its vehicles, and many other specialized tasks. Implicit in the making of this finding is that the Applicant's skilled labour supplied under duress assisted the LTTE to hide restricted items from detection by Government authorities.
[3] In its decision of May 7th, 2004, with regard to an IFA in Colombo, the RPD said this:
Also, at fifty-seven years of age, the claimant is older than the group traditionally of interest to the LTTE and the Sri Lankan authorities.
The claimant has a transferrable skill and although there is an LTTE presence in Colombo, the documentary evidence does not suggest forced recruitment of workers, nor does it suggest that the LTTE has a large fleet of vehicles in Colombo requiring the skills of the claimant.
(RPD Decision, p. 3)
[4] In my opinion, the RPD's findings with respect to a viable IFA in Colombo is not responsive to the evidence presented by the Applicant, or the argument made on his behalf. During the course of the hearing before the RPD, the Applicant gave evidence that, were he to reside in Colombo, he fears he would suffer retribution from the LTTE because he left Jaffna, and more importantly, the LTTE would want him to work for them in Colombo as he did in Jaffna, and if he refused, they would kill him (Tribunal Record, p. 161). In the course of argument before the RPD, Counsel for the Applicant made the following submission:
The claimant said he identified some people who were members of the Tigers in Colombo, but the documentary evidence also supports that position that the Tigers are operating freely and openly in the capital. In fact, the LTTE is no longer a prohibited organization. The Tigers may have no need to disguise their membership, their existence, and can freely operate throughout the country and that's precisely what they're doing at the present time. There are restrictions on the type of conduct they're permitted to carry out. They're not supposed to be carrying weapons. They're not supposed to be shooting at one another or anybody else, however those restrictions aren't certainly of late being adhered to very rigidly.
[Tribunal Record, p. 165]
[5] On the record before the RPD, there is ample evidence substantiating the argument made by Counsel for the Applicant that, as of the date of the decision, the LTTE in Colombo possesses guns and uses them (Applicant's Application Record, p. 36; p. 39; p. 53). There can be no doubt that, in the course of this conduct, the LTTE would hide its weapons. As a result, there is evidence that, in Colombo, the Applicant would be subject to the same persecution he suffered in Jaffna.
[6] I find that the RPD did not focus on the reality that existed in Colombo on the date the decision was made, but rather used irrelevant considerations to support its IFA determination. It is irrelevant that there is no generalized forced recruitment of workers, or that the LTTE might not have a large fleet of vehicles. The RPD's failure to cope with the precise evidence with respect to the LTTE's actions in Colombo, and how they might affect the Applicant, in my opinion, renders the decision as patently unreasonable.
ORDER
Accordingly, I set aside the RPD's decision and refer the matter back to a differently constituted panel for re-determination. On the re-determination, I direct that, as found by the RPD in the decision under review, the panel accept that the Applicant suffered past persecution in Jaffna.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4886-04
STYLE OF CAUSE: BALASINGAM SINNIAH
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: JUNE 1, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: Campbell, J.
DATED: JUNE 3, 2005
APPEARANCES BY:
Raoul Boulakia FOR THE APPLICANT
Martin Anderson FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Raoul Boulakia
Barrister and Solicitor
Toronto, Ontario
FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT