Date: 20030917
Docket: IMM-3670-02
Citation: 2003 FC 1078
Toronto, Ontario, September 17th, 2003
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
JONATHAN BALENDRA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Balendra is an unmarried Tamil citizen of Sri Lanka in his mid-thirties. He challenges, by way of judicial review, the decision of the former Convention Refugee Determination Division of the Immigration and Refugee Board (CRDD) rejecting his claim to Convention refugee status.
[2] Mr. Balendra's alleged history of persecution began in 1983. He claims to have been harassed, arrested and detained by the Sri Lankan army on numerous occasions. He also experienced recruitment attempts by the Liberation Tigers of Tamil Eelam (LTTE). The LTTE forced him to go to propaganda meetings and in 1992, ordered his parents to send him to the LTTE camp to join its movement. Mr. Balendra's plans to flee to India were frustrated when the village where he was hiding was overtaken and captured by the army. He claims to have been assaulted and interrogated at various times by the army. In 1999, he says that the LTTE began to visit his home asking for money and food. Over the next two years, the LTTE visited the school where he was teaching and, on one occasion, held a propaganda meeting and ordered him to encourage students to support the LTTE. The triggering event that led to Mr. Balendra's departure from Sri Lanka occurred on July 23, 2001. He was arrested and assaulted by the army on the same day that a student at his school was believed to have been taken by the LTTE. Accused of helping the LTTE in Jaffna and of using his private school (tutory) as a meeting point for the LTTE, he was taken into detention, tortured and threatened with death in the event he was rearrested. He was released on payment of a bribe and told to report to another army camp at the end of July. He headed for Colombo, intending to leave the country, but was arrested and detained overnight by police who questioned him, beat him and ordered him to leave Colombo. Mr. Balendra left Sri Lanka on August 4, 2001 with the assistance of an agent. He arrived in Canada on September 30th by way of the United States where he was detained for approximately two months.
[3] The CRDD found that Mr. Balendra had not demonstrated that he was a Tamil who resided in the north during the times material to his claim. His sister, a Canadian citizen, testified that Mr. Balendra is her brother, but could only confirm that she last saw him in Jaffna in 1992. Mr. Balendra's evidence regarding his whereabouts, in the years after 1992, was found to have been impugned by his testimony thereby providing the CRDD with "more than enough reason to rebut the presumption of truthfulness on his part". The CRDD found Mr. Balendra generally lacking in credibility. It based its determination on implausibilities, contradictions and inferences drawn from the evidence.
[4] Mr. Balendra takes issue with a number of the credibility findings made by the CRDD. Although I would not have arrived at the same determinations, it is not open to me, on a standard of review of patent unreasonableness, to substitute my opinion for that of the board. Having reviewed the transcript, I am unable to conclude that the inferences drawn by the board were patently unreasonable.
[5] Mr. Balendra also submits that the documentary evidence supported and corroborated his testimony. Notwithstanding, the documentary evidence was neither acknowledged nor (when regard is had to the decision) considered. He maintains that the most recent evidence in relation to a well-founded fear of persecution must be considered. Here, the evidence establishes that northern Tamils continue to suffer harassment, arrest, beatings and recruitment in Sri Lanka. Mr. Balendra argues that the fact that he was found to be not credible does not preclude him from being a refugee if his membership in a social group and his perceived political opinions and activities are likely to lead to arrest and punishment. Given the documentary evidence before the CRDD and its identification of him as a northern Tamil, there was credible evidence upon which the board could have found him to be a Convention refugee. I agree with this submission.
[6] The CRDD accepts that Mr. Balendra is a Tamil from the north and accepts his sister's evidence that he was in Jaffna until at least 1992. I note that the board could not have concluded otherwise in view of the documents before it in this respect. It is his whereabouts during the times material to Mr. Balendra's claim that troubled the CRDD. After rejecting the testimony of past persecution in Sri Lanka on the basis of credibility, it concluded its decision with the following comment:
Because we have no idea where the claimant was at times material to his claim, we are unable to further assess his risk of persecution in Sri Lanka.
[7] With respect, in my view, having accepted his identity as a northern Tamil, it was incumbent on the CRDD to consider the documentary evidence in relation to Mr. Balendra for the purpose of determining whether, as a Tamil male from the north, he fits the profile of a person who would be persecuted if returned to Sri Lanka. As Mister Justice Evans, then a trial judge, stated in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998) 157 F.T.R. 35 - tribunals are not required to refer to every piece of evidence that they receive that is contrary to their finding and to explain how they dealt with it. However, the more important the evidence that is not mentioned specifically and analysed in the reasons, the more willing a court may be to infer from the silence that the panel made an erroneous finding without regard to the evidence.
[8] This case is one where the documentary evidence was of such significance that it ought to have been mentioned and analysed. I find support for this position in Mahamandam v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1228 (C.A.) wherein Chief Justice Isaac, speaking for the court, stated:
Where, as here, documentary evidence of the kind in issue here is received in evidence at a hearing which could conceivably affect the Board's appreciation of an Appellant's claim to be a Convention refugee, it seems to us that the Board is required to go beyond a bare acknowledgement of its having been received and to indicate, in its reasons, the impact, if any, that such evidence had upon the Applicant's claim. As I have already said, the Board failed to do so in this case. This, in our view was a fatal omission, as a result of which the decision cannot stand.
[9] Had it turned its mind to the documentary evidence respecting the persecution of Tamil males, the board's consideration and determination with respect to Mr. Balendra as a Convention refugee may well have been affected despite its credibility findings in relation to his evidence of past persecution. I accept and adopt the comments of my colleague Mister Justice Gibson in Mylavaganam v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1195 at paragraph 5 where he states:
Even if it rejected outright as it did the applicant's own alleged experience of persecution in its analysis and support of its decision in this matter, it does not appear to have rejected the applicant's identity as a young Tamil male from the north of Sri Lanka. Having accepted this identity the CRDD then ignored the substantial evidence before it that a person such as this applicant might well be subjected to persecution if he were required to return to Sri Lanka and that therefore he might very well have had not only a subjective fear of persecution but potentially a well-founded objective basis to that fear.
[10] The reasoning applies equally here. See also: Kathirkamu v. Canada (Minister of Citizenship and Immigration) 2003 FCT 409, F.C.J. No 592; Baranyi v. Canada (Minister of Citizenship and Immigration) (2001), 16 Imm. L.R. (3d) 142 (F.C.T.D.); Jeyasseelan v. Canada (Minister of Citizenship and Immigration) (2002), 218 F.T.R. 221 (T.D.).
[11] Counsel for the respondent valiantly argued in defence of the CRDD decision. Had the board articulated its reasons in the same fashion, its decision would, in all likelihood, be unassailable. Counsel's submission that because of the credibility issue, the board found that there exists no subjective fear cannot be sustained because the board made no such finding. There was absolutely no analysis or comment regarding subjective fear. The words do not appear anywhere in the decision. Moreover, if regard were had to the documentary evidence and if the board were to determine, after a proper review of the totality of the evidence, that Mr. Balendra does have an objective fear, it would be most difficult to conclude that there is no subjective component. In this respect, I rely on the decision of the Federal Court of Appeal, not referred to by either of the parties, wherein it was stated that it is hard to see in what circumstances it could be said that a person, who is by definition claiming refugee status, could be right in fearing persecution and still be rejected because it is said that fear does not actually exist in his conscience: Yusuf v. Canada, [1995] 1 F.C. 629 (C.A.).
[12] I conclude that the board was obliged to go further and analyse whether there was a likelihood of persecution on the basis of membership in a social group as described by the documentary evidence. Aside from a listing of its findings relative to credibility, the decision of the CRDD is totally devoid of analysis of any description.
[13] The application for judicial review will be allowed. Counsel posed no question for certification. This matter raises no question of general importance.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed. The decision of the CRDD is quashed and the matter is remitted back to a differently constituted panel of what is now the IRB.
"Carolyn Layden-Stevenson"
J.F.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3670-02
STYLE OF CAUSE: JONATHAN BALENDRA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: SEPTEMBER 16, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
DATED: SEPTEMBER 17, 2003
APPEARANCES BY: Mr. Helen P. Luzius
For the Applicant
Ms. Amina Riaz
For the Respondent
SOLICITORS OF RECORD: Ms. Helen P. Luzius
Barrister & Solicitor
Toronto, Ontario.
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20030917
Docket: IMM-3670-02
BETWEEN:
JONATHAN BALENDRA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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