Date: 19990217
Docket: IMM-1690-98
BETWEEN:
AMUTHA SIVABALARETNAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
[Delivered from the Bench at Toronto,
Ontario on February 16, 1999]
McGILLIS J.
[1] The applicant has challenged by way of judicial review a decision of the Immigration and Refugee Board ("Board") that she was not a Convention refugee. The applicant is a thirty-five year old Tamil from Jaffna in Sri Lanka
[2] It its decision, the Board rejected the applicant's claim to Convention refugee status on the basis that, even if she had a well-founded fear of persecution in the northern region of Sri Lanka, she had an internal flight alternative available to her in Colombo. In arriving at that decision, the Board relied on its analysis of the documentary evidence in the record to support its conclusion that "it would not be unduly harsh for the [applicant] to seek refuge in Colombo...".
[3] During the course of his able submissions, counsel for the applicant submitted that the Board erred in law by conducting a highly selective analysis of the documentary evidence. In support of his position, he referred to several pieces of documentary evidence, tendered at the hearing by the Refugee Hearing Officer, which tended to support the applicant's claim, and which were more recent than those relied upon by the Board. He also demonstrated that the Board failed to refer to any of the documentary evidence tendered by the applicant.
[4] I am satisfied, on the basis of my review of the record, that there was substantial documentary evidence, tendered by both the applicant and the Refugee Hearing Officer, which was ignored by the Board in its highly selective analysis. In the circumstances, I have concluded that the Board failed to "... consider and weigh the total evidence in a proper fashion." [See Hassan v. Minister of Employment and Immigration (1992), 147 N.R. 317, 318 (F.C.A.)].
[5] Given my conclusion in this matter, it is unnecessary for me to consider the other issues raised by counsel for the applicant.
[6] The application for judicial review is allowed. The decision of the Immigration and Refugee Board is quashed and the matter is remitted to a differently constituted Board for rehearing and redetermination. The case raises no serious question of general importance.
"D. McGillis"
Judge
Toronto, Ontario
February 17, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1690-98
| STYLE OF CAUSE: AMUTHA SIVABALARETNAM |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: TUESDAY, FEBRUARY 16, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: McGILLIS, J.
DATED: WEDNESDAY, FEBRUARY 17, 1999
APPEARANCES: Mr. Avi J. Sirlin
For the Applicant
Ms. Andrea M. Horton
For the Respondent
SOLICITORS OF RECORD: Avi J. Sirlin
| Barrister & Solicitor |
| 175 Harbord Street |
| Toronto, Ontario |
| M5S 1H3 |
| For the Applicant |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990217
Docket: IMM-1690-98
Between:
| AMUTHA SIVABALARETNAM |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR JUDGMENT