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CITIZENSHIP AND IMMIGRATION

                                                                         Humanitarian and Compassionate

Considerations

                                                                                 Persons in Need of Protection

Judicial review of Refugee Protection Division of Immigration and Refugee Boards 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 arrivalClaiming persecution by Army and Liberation Tigers of Tamil EelamBoards 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 persecutionAlso noting applicants seven‑week delay in claiming refugee statusApplicants explanation for delay going to credibility, greatly affecting evidence of subjective fear of persecutionBoard looking at whole of documentary evidence before concluding no reference therein to older Tamils being arrested in 2000 despite principal applicants 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 onlyAll relevant considerations, countrys human rights record to be considered under s. 97 evaluationDespite requirement for objective assessment of s. 97 claim, analysis must still be individualizedNegative subjective fear determination under s. 96 (Convention refugees) not necessarily determinative of claim under s. 97Both claims to be considered separately despite existence of same evidentiary basisTest under s. 97 different than that under s. 96Board must determine whether claimants removal would subject claimant personally to dangers, risks stipulated in s. 97In present case, Board finding applicants personal circumstances not fitting profile of documentary evidence Boards overall conclusion for both claims not patently unreasonableApplication dismissedImmigration 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.)

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