Date: 19980908
Docket: IMM-3823-97
BETWEEN:
RUDRASIGAMANY GNANA-EASWARY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
[1] These reasons arise out of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning assigned to that phrase in subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 18th of August, 1997.
[2] The applicant is a Tamil citizen of Sri Lanka. She was born the 3rd day of July, 1941. She lived, until the age of 16, in Colombo. She then moved with her family to Valvettiturai in the north of Sri Lanka, a community that she describes in the narrative to her Personal Information Form as her "native place". She married and raised her four children in Valvettiturai. In the narrative to her Personal Information Form, she describes mistreatment there at the hands of the police, the military, the Indian Peace Keeping Force, and the Tamil Tigers. During the time she lived in Valvettiturai, three of her children fled from Sri Lanka.
[3] In 1991, the applicant and her daughter who remained with her moved to Colombo. They experienced further difficulty, including extortion, in Colombo. The fourth child married and followed her husband to Canada.
[4] In November of 1993, the applicant and her husband, who had apparently mostly lived apart from the family by reason of his work, moved to India on visitors" visas. Faced with difficulty in maintaining their status in India, they returned to Sri Lanka, and to Colombo, in October 1994. Once again they encountered difficulties in Colombo. The applicant and her husband very quickly moved to Vavuniya, in north-central Sri Lanka and described by counsel for the applicant before me as the "gateway to the north". The applicant's husband had, at an earlier time, lived and worked in Vavuniya. Once again, the applicant encountered difficulty. She returned, very briefly, to Colombo and then came to Canada.
[5] The CRDD, early in its reasons, wrote:
The panel finds that the claimant's evidence was not credible or trustworthy and was guided by the words of Mahoney, J. in Orelien:2
| It seems to me one cannot be satisfied the evidence is credible or trustworthy unless satisfied that it is probably so, not just possibly so. |
For the following reasons, the panel is not satisfied that the claimant has good grounds for fearing persecution if she were to return to her country of origin.
[6] The CRDD then went on in its analysis to consider two issues, the well-foundedness of the applicant's fear and whether or not she had an internal flight alternative ("IFA") to Colombo.
[7] The CRDD determined the applicant not to have a well-founded fear. It based this finding on her re-availment when she returned to Colombo from India and her delay in making her Convention refugee claim after arriving in Canada, a delay of some sixteen months. In her testimony before the CRDD, the claimant provided an explanation for each. The CRDD, rather summarily, rejected both explanations. As to her explanation for re-availment, it found the applicant's evidence to be contradictory. It further found the explanation implausible. It wrote:
... it does not seem reasonable to this panel that she would return not just to Colombo, but to the North, at a time when the LTTE were aggressively campaigning for a separate state.
[8] As to her delay in making a Convention refugee claim in Canada, the CRDD essentially found the applicant's explanation implausible if her testimony as to the hardships she had endured in Sri Lanka was to be believed. The CRDD wrote:
Given the claimant's re-availment of protection in Sri Lanka when she returned, not just to Colombo but to the North in 1994, and the delay in filing for Convention refugee status, i.e., 16 months from her time of arrival in Canada, the panel is not satisfied that she suffered the treatment she described at the hands of the authorities and the LTTE in Sri Lanka.
Thus, the applicant's re-availment and delay in making her claim constituted the basis for the CRDD's earlier general finding regarding lack of credibility. At the same time, lack of credibility was used as the basis of rejection of the applicant's explanations for her re-availment and delay. The CRDD's reasoning is circular.
[9] Having rejected the applicant's evidence, including her evidence regarding the difficulties she encountered in Colombo, the CRDD went on to find that she had an IFA to Colombo. It based his finding on the applicant"s personal characteristics: a woman of 56 years of age at the time of the hearing before the CRDD with what it considered to be work skills in cooking and sewing, notwithstanding that it acknowledged that the applicant had "... never been employed anywhere...".
[10] While the ultimate conclusion of the CRDD that the applicant is not a Convention refugee might have reasonably been open to it on the basis of all of the evidence before it, I am satisfied that its decision cannot stand on the basis of the analysis provided in its reasons. As indicated earlier, its conclusions regarding credibility and lack of a well-founded fear are circular. It is an error of law to conclude that the applicant's evidence is not credible because she has not established a well-founded fear by reason of re-availment and delay and at the same time to conclude that her explanations for re-availment and delay are to be rejected because her evidence is not to be believed.
[11] The CRDD's finding regarding an IFA is clearly founded on a disbelief of her evidence regarding the difficulties that she has experienced in Colombo. If the generalised finding regarding a lack of credibility cannot stand, and I conclude that it cannot, the finding of an IFA based on that credibility finding also cannot stand.
[12] For the foregoing reasons, this application for judicial review will be allowed and this matter will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.
[13] Neither counsel recommended certification of a question. No question will be certified.
Judge
Ottawa, Ontario
September 8, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3823-97
| STYLE OF CAUSE: RUDRASIGAMANY |
GNANA-EASWARY
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: TUESDAY, AUGUST 25, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON, J.
DATED: TUESDAY, AUGUST 25, 1998
APPEARANCES: Ms. Barbara Jackman
For the Applicant
Mr. Stephen Gold
For the Respondent
SOLICITORS OF RECORD: Jackman, Walman & Associates
Barristers & Solicitors
281 Eglinton Ave. E.,
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980825
Docket: IMM-3823-97
Between:
| RUDRASIGAMANY |
GNANA-EASWARY
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
__________________
2 Orelien v. Canada (Minister of Employment and Immigration) (1991), 15 IMM. L.R. (2d) 1 at 11 (F.C.A.)