Date: 20060418
Docket: IMM-4756-05
Citation: 2006
FC 493
Ottawa, Ontario, April 18, 2006
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
KANTHASAMY SELLIAH and
MALLIKADEVI KANTHASAMY
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr.
Selliah’s and his wife’s, Ms. Kanthasamy, story that they reasonably feared
persecution in Sri Lanka at the hand of the LTTE, and others, was not believed
by the Refugee Protection Division of the Immigration and Refugee Board. It
found that although they were Tamils from Sri Lanka, their story was not credible and that
they had no well-reasoned fear of persecution should they be returned to their
homeland. This is a judicial review of that decision.
[2]
Counsel
for the applicants raised a number of issues, but the matter boils down to the
circumstances relating to their alleged kidnapping by the LTTE in July 2004.
[3]
Although
the applicants had stated that they had had prior troubles with the LTTE, they
had been left alone from December 2001 until July 2004. They were then
kidnapped and held for a ransom of 50,000 rupees. The applicants thought the
LTTE’s renewed interest probably arose from the fact that they would have known
that their son had moved to Canada and might be able to send them money for
support.
[4]
The
Board asked the applicants how the LTTE would have known that their son was in Canada or that he
had any money. They speculated that perhaps a neighbour had mentioned the fact.
[5]
The
Board did not find it credible that the LTTE would have waited only three
months before engaging in their extortion activities. Surely they would have
waited for a while longer so that the son could have saved up some money.
[6]
With
respect, this is pure speculation. Why should the applicants know what lay in
the minds of the LTTE? To paraphrase Mr. Justice O’Reilly, “In my view, the
Board fell into error when it seemed to require [Mr. Selliah and Ms.
Kanthasamy] to prove that the actions of the LTTE … were rational and
justifiable.” (Yoosuff v. Canada (MCI) 2005 FC 1116 at paragraph 8). He
relied, as do I, on the fact that terrorist groups often act irrationally.
There appears to have been some considerable misunderstanding about how the
50,000 rupee ransom was raised. The Board was of the view that Ms. Kanthasamy,
who had allegedly paid bribes in the past, had 40,000 rupees on her person. The
Board did not find it credible that she would have had such a large amount on
her person, and secondly if she did, why she would have bluffed her way through
a three-day detention (six days for her husband) before paying the money.
[7]
Consider
the following portion of the transcript of Ms. Kanthasamy’s interview in
English translation:
RPO: How long did
they keep you?
CLAIMANT #2: I
was detained for three days; he was detained for six days.
RPO: Why were you
only detained for three days?
CLAIMANT #2: They
released me asking me to go and bring the money to have him released.
RPO: So, how much
money were they asking you for?
CLAIMANT #2: 50,000
rupees
RPO: Were you able
to arrange for this money?
CLAIMANT #2: I
do farming, so I had some money with me.
RPO: How much money
did you have?
CLAIMANT #2: I
had 40,000 with me, and I had to borrow some money.
RPO: Who did you
borrow money from?
CLAIMANT #2: There
was four (inaudible), one of my neighbours who had borrowed money.
RPO: So, you asked
for the money back?
CLAIMANT #2: Yes,
they returned the money and then on the sixth day I went, gave the money and I
had him released.
[8]
The
RPO (Refugee Protection Officer) in later summing up the case was of the view
that Ms. Kanthasamy was saying she had 40,000 rupees available, not that she
had it on her person. This is what she says in her affidavit supporting the
application. Would not the LTTE have known if she had cash in hand?
[9]
The
finding of fact by the Board that Ms. Kanthasamy had 40,000 rupees on her
person was a major factor in finding that the applicants were not credible. However,
that is not what she said.
[10]
Although
findings of fact, including findings of credibility, should not be disturbed
unless patently unreasonable, the case law is such that one must begin with the
rebuttable presumption that the applicant is telling the truth. There is no
evidentiary basis to disturb that presumption. Indeed, the finding cannot stand
up to the slightest analysis.
[11]
Consequently,
I shall allow the application. There is no general question of general
importance to certify.
ORDER
THIS COURT
ORDERS that the application for judicial review is allowed and the
matter is referred back to the Refugee Protection Division of the Immigration
and Refugee Board for a redetermination by a differently constituted panel.
“Sean
Harrington”
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