Date: 19971106
Docket: IMM-4570-96
BETWEEN:
SELVARANEY SELVARAJAH
RAJHMAKENDERA SELVARAJAH
RANIMAJURA SELVARAJAH
RAJHSAVENDERA SELVARAJAH
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.
[1] In determining that this family of Sri Lankan Tamils - a mother, her ten-year old son and two younger daughters were not convention refugees, the Convention Refugee Determination Division failed to disclose its reasons concerning the claimants' fear of the boy's recruitment by the Liberation Tigers of Tamil Eelan and his persecution by security forces on the suspicion of his LTTE involvement. This is the applicants' principal ground for judicial review with which I agree.
[2] The fear of the son's persecution was added to the mother's personal information form at the outset of the hearing. The issue was raised by the mother during her testimony and on the applicants' behalf in their counsel's oral submissions. In the penultimate paragraph of its reasons, the tribunal notes that the children's claims "... to a well-founded fear of persecution in Northern Sri Lanka are totally based on their mother's claim" and concludes that they, like their mother, are not convention refugees.
[3] After correctly advising the mother prior to her testimony that her evidence may affect the determination of the claims of her children and that "... decisions will be made for each individual claimant ...", the tribunal was required to set out its reasons for determining that the son was not a refugee. Its failure to do so is contrary to the legal requirements of subsection 69.1(11) of the Immigration Act and constitutes a reviewable error.
[4] Unless the tribunal orders otherwise, the claims of the principal applicant and the dependants are heard jointly pursuant to Rule 10 of the Convention Refugee Determination Division Rules, SOR/93-45. However, counsel for the applicant candidly agreed with the respondent that each decision is separate and one may be set aside without disturbing the others. The tribunal made a negative finding of credibility concerning the mother's testimony of having been fingerprinted, photographed and beaten during her detention by police authorities in Columbo, an allegation she failed to include in her personal information form. The tribunal went on to find that the claimants had an internal flight alternative in Columbo. In my view, in the circumstances of this case, if the tribunal had focussed specifically on the son's fear of persecution in its reasons, the outcome may have been different concerning the family's internal flight alternative. For this reason, it would be appropriate, if not necessary, to set aside the tribunal's decision with respect to the four claimants.
[4] Accordingly, this matter will be remitted for a new hearing before a differently constituted panel. Neither counsel has suggested the certification of a question.
Judge
Ottawa, Ontario
November 6, 1997