CITIZENSHIP AND IMMIGRATION
Humanitarian and Compassionate
Considerations
Persons in Need of Protection
Judicial review of Refugee Protection Division of Immigration and Refugee Board’s finding applicants not Convention refugees, persons in need of protection under Immigration and Refugee Protection Act (IRPA) , ss. 96, 97— Applicants, Sri Lankans, claiming refugee status in Canada seven weeks after arrival—Claiming persecution by Army and Liberation Tigers of Tamil Eelam—Board’s errors as outlined by applicants not material, not affecting overall conclusion— Board finding applicants not adducing credible evidence of alleged persecution, objective (documentary) evidence not supporting claims of persecution—Also noting applicants’ seven‑week delay in claiming refugee status—Applicants’ explanation for delay going to credibility, greatly affecting evidence of subjective fear of persecution—Board looking at whole of documentary evidence before concluding no reference therein to older Tamils being arrested in 2000 despite principal applicant’s claim arrested, beaten by police —Applicants alleging Board failed to make separate evaluation of claims under IRPA, s. 97 (persons in need of protection)—S. 97 determination based on objective evidence only—All relevant considerations, country’s human rights record to be considered under s. 97 evaluation—Despite requirement for objective assessment of s. 97 claim, analysis must still be individualized—Negative subjective fear determination under s. 96 (Convention refugees) not necessarily determinative of claim under s. 97—Both claims to be considered separately despite existence of same evidentiary basis—Test under s. 97 different than that under s. 96—Board must determine whether claimant’s removal would subject claimant personally to dangers, risks stipulated in s. 97—In present case, Board finding applicants’ personal circumstances not fitting profile of documentary evidence— Board’s overall conclusion for both claims not patently unreasonable—Application dismissed—Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 96, 97.
Kandiah v. Canada (Minister of Citizenship and Immigration) (IMM‑1559‑04, 2005 FC 181, Martineau J., order dated 7/2/05, 10 pp.)