Date: 20010515
Docket: IMM-2869-00
Neutral Citation: 2001 FCT 475
Between:
Pathmalogini ARIYARAJNAM and
Kaurisa NAGULESWARAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J.:
[1] The applicants seek judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated April 28, 2000, in which the Board determined that they were not Convention refugees as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The main applicant, Mrs. Ariyarajnam, and her nine-year-old daughter, Kaurisa Naguleswaran, are both Hindu citizens of Sri Lanka. They claim to have a well-founded fear of persecution on the basis of race, religion, imputed political opinion and membership in a particular social group at the hands of the Sri Lankan Army, the Liberation Tigers of Tamil Eelam (LTTE), the Sri Lankan police and the Sinhalese people. The main applicant's daughter founds her claim on that of her mother.
[3] The Board found that there was no basis for concluding that the applicant has a well-founded fear of persecution due to her lack of credibility.
[4] The Board committed two errors that immediately jump to my attention. In its factual summary, the Board explicitly notes that the applicant left Sri Lanka for Colombo during the second week of June 1999 and left Colombo for Canada on June 28, 1999, arriving in Canada on July 9, 1999. This latter date is consistent with the applicant's Personal Information Form, which indicates that she made her refugee claim in Montreal on July 16, 1999. These dates are further supported by the following excerpt of the transcript of the oral evidence:
Counsel In June of 1999, she (the applicant) was in Colombo.
Board Just June?
Counsel Yes.
Board In Colombo, and then July 99?
Counsel July to date, Montreal.
[. . .]
Board So, Mr. Proulx, do we understand that the claimant was in Colombo from June to July 1999?
Counsel During what period were you in Colombo?
Applicant Up till 28th of June I was there.
Board And when did you arrive in Colombo?
Applicant On the 10th.
Board Okay. So June 10, 99 to June 28th, 99 is when the claimant was in ...?
Counsel Colombo ... Ready to leave.
[5] The Board's following credibility findings are clearly at odds with all of the previous objective evidence:
The claimant testified that she decided to leave Sri Lanka as a result of an incident which occurred in February 1999. It is therefore determined to be central to the claim.
[. . .]
The claimant testified that although they had decided to leave Sri Lanka after this incident, they did not leave until October 1999. Although they had thought about it, they took no immediate action because according to the testimony, they had a lot of property and had much to consider. Given that the claimant referred to the February 1999 incident as the worst thing that happened to her in Sri Lanka and as the event that precipitated her decision to leave, her delay in leaving is determined not to be consistent with that of one who is fleeing for one's life. Furthermore, although the claimant made references in her Personal Information Form (PIF) to systemic and gang rape of Tamil women by the army, she took no immediate measures to minimize the risk of this happening again. . . . Therefore, the panel has determined that the February 1999 incident probably never occurred and, if it did, that the claimant did not prove a subjective fear of persecution.
Furthermore, the claimant, her husband, and her daughter were in Colombo from June to October 1999 while en route from Manipay to Canada on October 20, 1999. The claimant testified that it took approximately five months to make the necessary arrangements with an agent in order to leave Colombo. The panel does not accept this explanation as reasonable. Furthermore, after all this preparation time her husband, who is now in Vavuniya, did not leave with them because the agent was unable to get a passport for all three of them. The panel does not accept this explanation as reasonable nor plausible.
(My emphasis.)
[6] Upon reviewing the evidence, I find that these errors, being material to the finding of lack of credibility, were sufficient to taint the Board's entire decision (see, for example, Katalayi v. Minister of Citizenship and Immigration (October 31, 1997), IMM-179-97, at paragraphs 6 and 7). In the circumstances, I do not consider that the Court ought to substitute its appreciation of the facts to that of the Board, had the errors not occurred.
[7] Consequently, being of the opinion that the Board based its decision on an erroneous finding of fact that it made without regard for the material before it (see paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7), the application for judicial review is allowed, the Board's decision set aside and the matter remitted for rehearing by a differently constituted panel.
[8] Given this result, the question proposed by the applicants for the purpose of certification need not be certified.
JUDGE
OTTAWA, ONTARIO
May 15, 2001
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