Date: 20010618
Docket: IMM-4954-00
Neutral Citation: 2001 FCT 672
BETWEEN:
GANESARAJAH SOMASUNDARAM
PONMALAR GANESARAJAH
KASTHURI GANESARAJAH
CHENTHURAN GANESARAJAH
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HANSEN J.
[1] In this application for judicial review the applicants seek to set aside the September 6, 2000 decision of the Immigration and Refugee Board of the Convention Refugee Determination Division (CRDD) in which it was determined that they are not Convention refugees.
[2] The applicants are Tamils from Sri Lanka. According to the Personal Information Forms (PIF), the adult applicants were married in 1984 and lived in Colombo. In late 1994, as a result of harassment in Colombo, the applicants moved to Moolai on the Jaffna Peninsula. In October 1995, they fled to Chavakachcher as the Sri Lankan army invaded the Jaffna Peninsula. They returned to their home in Moolai in April 1996 when Chavakachcher was captured by the army. As a result of harassment, detention and torture, they fled to Colombo in 1999 where they were arrested. They then fled to Canada.
[3] The main issue on this application for judicial review arises from the following intervention during the course of the examination-in-chief of the applicants:
BY PRESIDING MEMBER (to counsel)
Q. Counsel, could we concentrate (...inaudible - whispers...) of course, but could we concentrate on (...inaudible...) Persecution these people went through?
A. ...
Q. ... all this information are already given in the PIF and we have no reason to doubt them.
[4] In its reasons the panel stated:
For the above reasons, the panel believes that the claimants did not establish by credible evidence that they lived in Moolai from December 1994 to May 1999.
[5] The applicants submit the Tribunal breached the principles of natural justice by stating there was no need to have testimony on certain matters because it accepted the contents of the PIF, then found the evidence lacking in credibility with respect to those same matters.
[6] The respondent submits the presiding member was simply trying to focus the examination-in-chief on incidents of persecution suffered by the applicants. Given the point in time at which the intervention occurred, the panel was only acknowledging that it accepted the contents of the PIF regarding general preliminary matters such as marital status and age. Further, the applicants were questioned by the panel later in the hearing and, therefore, had an opportunity to address the panel's concerns.
[7] Had the intervention occurred during the examination-in-chief when preliminary matters were being canvassed, I would have less difficulty in accepting the respondent's position. However, the intervention occurred at a point when Ponmalar Ganesarajah was beginning to testify about the move to Moolai in late 1994. Following the comment, counsel for the applicants began posing questions regarding the incidents of persecution which led the applicants to flee Sri Lanka. Within this context, it was reasonable to assume the panel accepted the applicants' account, as stated in the PIF, of their move to Moolai and the subsequent events up to the time of the specific incidents of persecution as credible. Based on this statement, it was reasonable for counsel to assume that no further evidence was required to establish where the applicants were living between 1994 and 1999. In this instance, the adverse credibility finding, in light of the earlier statement, constitutes a breach of the principles of natural justice.
[8] For these reasons the application for judicial review is allowed, the decision dated September 6, 2000 is set aside and the matter is remitted for reconsideration by a differently constituted panel.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
June 18 , 2001
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