Federal Court


Board completely disregarded future-looking profile evidence

Application by refugee claimant for judicial review of decision that he was neither Convention Refugee nor person in need of protection. Refugee claimant was Tamil citizen of Sri Lanka. Refugee claimant and his family had been displaced from their home in Jaffna to Sangaranthai by Liberation Tigers of the Tamil Eelam (“LTTE”) in 1987. Refugee claimant and family tried returning later that year when they thought it was safe but soldier shot at them. Refugee claimant’s father was killed and refugee claimant, his mother, and one brother were wounded. Refugee claimant and his family returned to Jaffna in 2004 after cease-fire was negotiated. Refugee claimant was detained and questioned by Sri Lankan Army on two occasions in 2004 and on two occasions in 2006. Refugee claimant alleged his scars from 1987 shooting had led Sri Lankan Army to believe he was former member of LTTE. Refugee claimant went to live with his sister in another city but was detained by Sri Lankan police and told to leave. Refugee claimant left Sri Lanka in 2007, spent time in various countries, and then passed through United States before coming to Canada in 2010. Refugee claimant unsuccessfully applied for refugee protection. Application granted; matter remitted for reconsideration. Immigration and Refugee Board had been reasonable in finding refugee claimant not to be credible but had erred in failing to consider whether his claim had been established by other evidence. Board failed to address independent documentary evidence relating to risks refugee claimant would face as visibly scarred, Tamil male, aged 37, returning to Sri Lanka after failed refugee claim. Refugee claimant had repeatedly referred to his scarring as significant part of his profile that placed him at risk. Refugee claimant had provided evidence from medical specialist confirming scars were consistent with bullet wounds. Refugee claimant had undoubtedly wanted this risk assessed. Refugee claimant’s counsel had made specific reference to refugee claimant’s evidence that scars stood out to Sri Lankan security forces and had been interpreted as combat injuries. Board completely disregarded future-looking profile evidence and documentary evidence relating to that profile. Documents before board specifically mentioned scarring as risk factor for ill-treatment as well as evidence of arrests for Tamils with particular profiles.

Pathmanathan v. Canada (Minister of Citizenship and Immigration)

(May 3, 2012, F.C., Russell J., File No. IMM-5913-11) 213 A.C.W.S. (3d) 1002 (21 pp.).

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