Date: 20041122
Docket: IMM-6136-03
Citation: 2004 FC 1637
Ottawa, Ontario, this 22nd day of November 2004
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
JEANETTE SHAMILA SELVANAYAGAM
JERUSHA SELVANAYAGAM
JASON SELVANAYAGAM
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] Jeanette Shamila Selvanayagam (the "Applicant"), and her two minor children, Jason and Jerusha, seek judicial review of the negative decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated July 23, 2003, in which the Board found that the Applicants were not Convention refugees and not persons in need of protection.
Background
[2] The Applicants are Sri Lankan nationals who claim to have been persecuted in their country due to their race and perceived political opinion. They seek refugee status in Canada since they fear persecution in their country by the Liberation Tigers of Tamil Eelam ("LTTE"), the Sri Lankan army ("SLA") and the Sri Lankan Police. The Applicants base their fear of persecution on the fact they are members of a particular social group, namely Tamils from the Trincomalee area of eastern Sri Lanka. The children base their claims on that of their mother.
[3] In her Personal Information Forms ("PIF") the Applicant recites a number of incidents where she and her husband were arrested, detained and beaten by the SLA army on suspicion of helping the LTTE. In July of 1998, the LTEE extorted money from the Applicant and her husband. Subsequently, the army raided their bookstore and the Applicant and her husband were arrested interrogated and tortured. After their release on July 7, 2001, the Applicant and her husband contacted an agent and made arrangements to come to Canada.
[4] The Applicants arrived in Canada on August 7, 2001, and claimed refugee status at the Fort Erie border crossing.
[5] The hearing of the claims was held before the Board in Toronto on April 11, 2003. The following documentary evidence was submitted for the Board's consideration: the principal Applicant's PIF, her postal identity card, her national identity card, a certificate of residence, articles on country conditions, her marriage certificate, the minor Applicants' birth certificates, portions of a bank statement, and a business licence. The Applicant also testified before the Board.
[6] The Presiding member found that the following issues arose in the case: the identity of the Applicants as nationals of Sri Lanka, the Applicants' credibility and their well-founded fear of persecution.
Standard of Review
[7] The Federal court of Appeal has determined that the Board, as a specialized tribunal, has complete jurisdiction to determine the credibility of testimony. As long as the inferences drawn by the Board are not so unreasonable as to warrant intervention, its findings are not open to judicial review: Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 at 316-317.
[8] The appropriate standard of review when dealing with conclusions of the Board which pertain to internal flight alternative (IFA) is patent unreasonsableness: Ali v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 361, online: QL; Ramachanthran v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 878, online: QL; Chorny v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1263, online: QL.
Impugned Decision
[9] The Board was satisfied that the Applicants were in fact nationals of Sri Lanka. The Board based this finding on the Applicant's national identity card, on her postal identity card and on her marriage certificate and, as well as, on the birth certificates of the minor Applicants issued by the government of Sri Lanka.
[10] The Board found the Applicants' place of residence in Sri Lanka to be the central consideration in respect to the credibility of their claims. The Board concluded on a balance of probabilities that the Applicants were residents of Colombo, not Trincomalee, as claimed. The Board based this finding on its examination of certain identity documents, namely the principal Applicant's marriage certificate, the birth certificates of the children, and two other documents attesting to their residency in Trincomalee, namely a bank statement from their bank in Trincomalee and a certificate of residence from the "Grama Sevaka" of Trincomalee.
[11] The Board found the Applicants to be residents of Colombo on the basis of the marriage certificate, which indicated that the principal Applicant and her husband had a Colombo address at the time of their marriage in 1990. The principal Applicant explained that this was so because they were indeed married in Colombo due to the unstable situation in Trincomalee where they resided, and that marriages were not celebrated in Trincomalee at the time. The Board rejected this explanation reasoning that the principal Applicant had not adduced any evidence, other than her testimony, to rebut the information on the marriage certificate, or to prove that the marriage could not have been performed in Trincomalee.
[12] The Board also rejected the Applicant's explanation for the Colombo address on her daughter's birth certificate because it did not find it credible. The Applicant had explained that she had to travel to Columbo to deliver her daughter by caesarian section since she could not have such a procedure in Trincomalee at that time due to the war. The Board held that Trincomalee is a major city with government hospitals where caesarian sections can be performed and that it was unnecessary for the principal Applicant to travel to Colombo for this procedure. The Board held that the principal Applicant was not able to provide evidence to rebut the information on the birth certificate, namely a Colombo address, which the Applicant claimed was only temporary. The Board also rejected the Applicant's argument that the delay in obtaining the birth certificate was attributable to it being sent to a registry office in Colombo after an application was filed.
[13] The Board also drew a negative inference from the absence of the minor children's education documents.
[14] Of the submitted documents that stated the Applicants' residence to be Trincomalee, only the eldest child's birth certificate, the bank statement and a certificate of residence were considered. The Board found that the birth certificate of the Applicant's first child bore a Trincomalee address because the principal Applicant returned to her mother's residence in Trincomalee for the birth of her first child as is culturally common in Sri Lanka. The Board found that the certificate of residence from the "Grama Sevaka" of Trincomalee, though containing stamps on the page, was not an official document typed on official stationary and consequently afforded it no weight. In respect to the bank statement, the Board found that it was plausible that the principal Applicant and her husband had a checking account in Trincomalee as their parents resided in that city.
[15] The Board rejected the principal Applicant's explanation as to why she and her children did not leave Sri Lanka earlier, even though she and her husband had experienced beatings in the government controlled area of Trincomalee, by the SLA, in 1993 and 1995. The principal Applicant explained that the decision to leave was prompted by the last violent incident which involved the finding of a receipt from their bookshop in a house used by the LTTE. The Board found the principal Applicant had not provided a reasonable explanation for her delay in leaving Sri Lanka.
[16] The Board also found that the manner in which the Applicants alleged they had travelled from Sri Lanka was implausible and determined on a balance of probabilities that the Applicant's husband is waiting in Sri Lanka to be sponsored by the Applicant.
[17] Finally, the Board found that the Applicants did not have a well-founded fear of persecution should they return to Sri Lanka, specifically Columbo, as documentary evidence establishes that there are no police registration requirements for Tamils and many check points have been lifted. Though security is still tight around government buildings, residents can move freely in the city and there are no restrictions with respect to freedom of movement. The Board determined that the government is in control in Colombo and there is no evidence of the recruitment of young children in Colombo by the LTTE. As the principal Applicant is educated, has experience in business and is proficient in English, the language of commerce in Colombo, the Board found that there was no more than a mere possibility that the claimant and her children would be persecuted should they return to Sri Lanka. The Board found that the principal Applicant's fear of returning, due to the use of false documents on her departure, is also unfounded as she need only obtain a valid Sri Lankan passport through the Sri Lankan mission in Canada.
Issue
[18] A number of issues were raised by the Applicant in the present application. For reasons that will follow, I consider the following issue to be dispositive of the application: did the Board err in basing its credibility finding on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it?
Analysis
[19] The Board found "the central issue in these claims" to be "...the claimants' residing in Sri Lanka." The Board did not believe that the principal Applicant resided in Trincomalee for the period alleged. It found she resided in Colombo after her marriage in 1991. As a result, the Board did not believe the incidents alleged at the hands of the SLA or the LTTE. The Board's finding, in respect to the Applicants' place of residence in Sri Lanka, is therefore central to its general credibility determination and its consequential finding that the Applicants' claim to a well-founded fear of persecution is not credible.
[20] I find, for the following reasons, that the Board erred in its assessment of the evidence regarding the Applicant's residence such as to warrant this Court's intervention.
[21] A number of documents, which were before the Board and which indicated that the Applicants resided in Trincomalee during the alleged period, were not expressly considered by the Board in its reasons. These include, the principal Applicant's Ministry of Defence ID card which states she is from Trincomalee, her Household Registration Form which stated she was from Trincomalee, the license from the Trincomalee Urban Counsel for the shop that she and her husband owned in Trincomalee.
[22] Though it is true that the failure of a Board to mention a particular document does not necessarily mean that it did not take the document into account (Hassan v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 946, on line: QL), it is also true that a decision of the Board will be vitiated if the Board has failed to mention evidence that was so central and probative to the Applicant's claim, and in contradiction to the Board's own conclusions, that omitting reference to such evidence in the reasons raises an apprehension that the decision was made without regard to the evidence before it. (See Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 at paragraphs 14-17.)
[23] The Board considered and rejected certain documents which supported a Trincomolee residence for the Applicants. It is unnecessary to deal with the Board's treatment of that evidence since I find that the above mentioned documents, which were not dealt with by the Board in its reasons and which supported the Applicants' claim of residency in Trincomalee, were important documents that should have been dealt with. They constitute evidence which is material to the issue of residency, which issue is central and probative to the Board's general credibility finding and the claim. Since this evidence supports a conclusion contrary to that reached by the Board, it was information that should have expressly been dealt with in the reasons. Having failed to do so, I find the Board erred in making its decision without regard to this evidence before it. The Board's finding was a patently unreasonable finding and constitutes a reviewable error.
[24] Though the Board found that "...there is not more than a mere possibility that the claimant and her children would be persecuted should they return to Sri Lanka, specifically Columbo,..." it did not expressly deal with the possibility of an IFA in its reasons.
[25] In Rasaratnam v. Canada (Minister of Employment and Immigration) [1992] 1 F.C. 706 (C.A.), the Federal Court of Appeal set out several basic principles concerning the applicability of the IFA. In its reasons, the Court stated at page 711:
In my opinion, in finding the IFA, the Board was required to be satisfied, on a balance of probabilities, that there was no serious possibility of the appellant being persecuted in Columbo and that, in all the circumstances, including circumstances particular to him, conditions in Columbo were such that it would not be unreasonable for the appellant to seek refuge there.
[26] In my view, the Board failed to deal with the second element of the Rasaratnam test, that is to say it failed to expressly deal with the circumstances particular to the Applicants in the context of an IFA in Columbo. This is so because the Board erred in its assessment of the Applicants particular circumstances. It erroneously found that the Applicants resided in Columbo during the period of the alleged numerous incidents suffered at the hands of the LTTE and the SLA. The Applicants' residence was deemed by the Board to be a central issue in this case, and its decision in this respect led to a negative credibility finding. Because of its negative credibility finding, the Board did not believe the incidents alleged at the hands of the SLA or the LTTE. These incidents, if believed, may well have influenced the Board's finding that "... there is not more than a mere possibility that the claimant and her children would be persecuted should they return to Sri Lanka, specifically Columbo,...".
CONCLUSION
[27] For the above reasons, the application for judicial review will be allowed. The matter will be sent back for redetermination before a differently constituted Panel of the Refugee Protection Division of the Immigration and Refugee Board.
[28] The parties have had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, Chapter 27, and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS:
1. The application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board dated July 23, 2003, is allowed.
2. The matter is sent back for redetermination before a differently constituted Panel of the Refugee Protection Division of the Immigration and Refugee Board.
3. No question of general importance is certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6136-03
STYLE OF CAUSE: Jeannette Shamila Selvanayagam et al. v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 19 and 21, 2004
REASONS FOR ORDER BY: BLANCHARD, J.
DATED: November 22, 2004
APPEARANCES BY:
Mr. Michael Crane For the Applicant
Ms. Lorne McClenaghan For the Respondent
SOLICITORS OF RECORD:
Michael Crane For the Applicant
Toronto, Ontario
Morris Rosenberg For the Respondent
Deputy Attorney General of Canada
Toronto, Ontario