Date: 19981221
Docket: IMM-1144-98
| BETWEEN: CEBAMALAIAMMAH DHEVARAJAH |
PRAVEEN DHEVARAJAH
Applicants
| AND: THE MINISTER of CITIZENSHIP and IMMIGRATION |
Respondent
REASONS FOR ORDER
DENAULT J:
[1] This is an application for judicial review of a decision of the Refugee Division wherein the applicant and her son were found not to be Convention refugees. The Board's decision is based on a negative credibility finding relative to the main applicant due to inconsistencies, contradictions and implausibilities in her testimony.
[2] The Board examined the applicant's account of events on different levels and found that:
| a) in view of her lack of knowledge of the conditions in the north of Sri Lanka in 1996 vis-à-vis the Tiger/Government conflict, it was not convinced that she was in the north of Sri Lanka at the time; |
| b) with respect to her escape to Colombo, both the description she gave of passing through Vavuniya and the checkpoints she should have encountered in Colombo were inconsistent with the documentary evidence; |
| c) the surrender of her passport to an agent without valid reason was made in bad faith, to deceive the panel as to her true whereabouts at the material times, contrary to paragraph 69.1 (10.1) (a) of the Immigration Act. |
[3] This Court is well aware that unless a decision of the Refugee Division is patently unreasonable or was made in a perverse or capricious manner or without regard to the material before it, this Court should not interfere. Additionally, it is well established that decisions based on negative credibility findings are properly made as long as the Board gives reasons in clear and unmistakable terms (Hilo v. MEI, (1991), 15 IMM, L.R. (2nd) 199 (FCA)).
[4] In the case at bar, I am of the opinion that the intervention of the Court is warranted.
[5] With respect to issue a), having reviewed the applicant's testimony as to the situation which she and her husband were experiencing in the north of Sri Lanka before they left, the conclusion reached by the Board that she was not in that part of the country in 1996 was, to say the least, perverse and capricious in light of the evidence adduced. Furthermore, the Refugee Division failed to address the applicant's explanation as to why she was unable to remember the significant Tiger victory at the battle of Mullaitivu in 1996, i.e. illness due to her second pregnancy at the time.
[6] With respect to b), the Board is relying on documentary evidence (page 203 of the Board record) to find incredible the fact that the applicant could have passed through the army checkpoint in Vavuniya in one day, and the fact that she encountered no checkpoints in Colombo in August 1996 since the city was under siege following a train blast in July 1996. A review of the documentary evidence relied on by the Board reveals no reference to the length of time people were delayed while going through Vavuniya. Moreover, the applicant, her husband and her son had a pass, and security procedures were only put in place in September 1996 (page 204 of the Board record), which is to say after they had gone through Vavuniya. Concerning the checkpoints in Colombo, apart from the Board's reference to a document dated July 26, 1996 dealing with the train blast, there is no reference to the existence of such checkpoints at the end of August 1996 when the applicant arrived in that city.
[7] In view of my conclusion that the Board made erroneous findings of fact without regard to the evidence properly before it, I find it unnecessary to consider the issue with respect to point c).
[8] This application must be granted, the decision of the Refugee Division dated February 9, 1998 set aside and the matter referred back for a rehearing of the applicants' claim by a differently constituted panel.
[9] In the circumstances of this case, no serious question of general importance needs be certified.
J.F.C.C.