Date: 19990430
Docket: IMM-2556-98
BETWEEN:
JOSEPHINE ANNAMALAR GEORGE
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
(Delivered Orally from the Bench at Toronto,
Ontario on Friday, April 30, 1999)
EVANS J.
[1] The Refugee Division rejected the applicant"s claim for refugee status on the ground that she had an internal flight alternative in Colombo. The applicant is a 61 year old Tamil woman from the north of Sri Lanka.
[2] The Refugee Division did not believe the applicant"s evidence that she had been sexually assaulted by police officers in Colombo shortly before she first came to Canada in 1993. The applicant had not relied on this incident in the refugee claim that she had made in 1993 and, when she made it a central part of her second claim, the Refugee Division did not find plausible her explanation of why she had not included it in the first claim.
[3] Counsel for the applicant conceded that the Refugee Division"s finding of non-credibility contained no reviewable error.
[4] The Refugee Division then considered the second element of the internal flight alternative, namely whether it was unreasonable to require the applicant to return to live in Colombo. It stated that it "had taken note" of a psychiatric report submitted on behalf of the applicant, in which the psychiatrist gave her opinion that the applicant was suffering from depression and that there was a potentially high risk that she would commit suicide if returned to Colombo.
[5] Despite this evidence, which was not challenged, the Refugee Division found that it was not unreasonable for the applicant to live in Colombo, apparently on the ground that the applicant"s case was more appropriate for an application to be landed from within Canada on humanitarian and compassionate grounds pursuant to subsection 114(2) of the Immigration Act, R.S.C. 1985 c. I-2.
[6] In my opinion, the Refugee Division"s reasons fail adequately to come to grips with the evidence contained in the psychiatric report. Thus, it is not clear whether the Refugee Division accepted the psychiatrist"s prognosis, or whether it was discounted, in whole or in part, as based on the sexual assault, which the Refugee Division was not satisfied had occurred.
[7] The report clearly constituted the most important piece of evidence before the Refugee Division on this aspect of the applicant"s claim, and the statutory duty to give reasons required that the Refugee Division"s reasoning reveal its analysis of it: compare Javaid v. Canada (Minister of Citizenship and Immigration) (F.C.T.D.; IMM-265-98; November 25, 1998).
[8] For these reasons, the application for judicial review is granted, and the Refugee Division"s decision is set aside. The matter is remitted to a differently constituted panel of the Refugee Division to hear and redetermine the only issue in dispute in this application for judicial review, namely whether it was unreasonable to expect the applicant to avail herself of the internal flight alternative in Colombo.
"John M. Evans"
J.F.C.C.
Toronto, Ontario
April 30, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-2556-98 |
| STYLE OF CAUSE: JOSEPHINE ANNAMALAR GEORGE |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: FRIDAY, APRIL 30, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER AND ORDER BY: EVANS J. |
DATED: FRIDAY, APRIL 30, 1999
APPEARANCES: Mr. Lorne Waldman
For the Applicant
Mr. Kevin Lunney
For the Respondent
| SOLICITORS OF RECORD: Jackman, Waldman & Associates |
| 281 Eglinton Avenue East |
| Toronto, Ontario |
| M4P 1L3 |
| For the Applicant |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990430
Docket: IMM-2556-98
Between:
| JOSEPHINE ANNAMALAR GEORGE |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
| AND ORDER |