Date: 20000210
Docket: IMM-1924-99
BETWEEN:
SANGITHA NADEESHANI ASSALAARACHCHI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
Introduction
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning of that expression provided in subsection 2(1) of the Immigration Act1. The decision of the CRDD was delivered orally at the close of the second hearing date, the 10th of February, 1999. Written reasons are dated the 12th of March, 1999.
Background
[2] The applicant is a citizen of Sri Lanka, Sinhalese by race and Buddhist by religion. She was born in a suburb of Colombo on the 30th of October, 1980. Thus, she was 16 years of age at the date of her first hearing before the CRDD, and 17 years of age at the second hearing date. Until the applicant fled to Canada, she lived all her life in Colombo with her parents. She alleges she lived a "... comfortable and sheltered life in Sri Lanka...".
[3] According to the applicant"s Personal Information Form, her claim to Convention refugee status is based on her perceived political opinion.
[4] Following completion of her high school studies, the applicant joined her father in his business which operated two trucks that transported goods to and from Colombo and other destinations in Sri Lanka.
[5] On the 9th of March, 1998 while the applicant and her father were in the office of their business, they were confronted by Sri Lanken army, police and "CID" officers. They were accused of supporting the Tamil Tigers. Apparently one of their trucks that was on route to Trincomalee was stopped, searched and found to be carrying ten bags of urea fertilizer capable of being used in the manufacture of explosives, each marked "sugar", within a cargo of some 200 bags of sugar. At the time, the Tamil Tigers were violently active in the Trincomalee region.
[6] The business office was searched without disclosing evidence of complicity of the applicant and her father in the shipment of urea fertilizer. Nonetheless, the applicant and her father were arrested. The applicant was held for some five days, photographed and fingerprinted, interrogated, and, in her words "tortured". After five days, the applicant was released on payment of a bribe.
[7] Fearing that she too would be arrested since government officials sought her out at the family home, the applicant"s mother went into hiding. Despite the fact that she was in hiding, the applicant"s mother, either directly or indirectly, contacted lawyers for assistance in obtaining the applicant"s release. The lawyers were uncooperative. The applicant"s mother contacted a "broker" who arranged for the applicant"s release on payment of a bribe. The applicant"s release was on terms that she would report once a week to the CID. The applicant never reported. She went into hiding, and through an agent fled Sri Lanka on the 19th of March, 1998.
The Decision of the CRDD
[8] The CRDD determined the applicant not to be credible. It found documents submitted on her behalf by her counsel, including a lawyer"s letter, a letter from the Red Cross and an affidavit of a neighbour to be "...self-serving and to have been obtained for the purpose of [the] refugee claim." The CRDD wrote: "We find that they do not establish that the claimant was arrested." This, despite the fact that the CRDD relies on one of the same documents to discredit the applicant. It notes a brief news article that was before it, dated the 11th of March, 1998, to the following effect:
| A lorry owned by Samigi Transport Services, carrying banned goods to the North has been captured. The day before yesterday [that is to say the 9th of March, 1998] in the evening the Trincomalee police were able to capture it. At the moment the Trincomalee police arrested the driver and the lorry and we have additional information to the effect that arrangements are being made to take the owners into custody for questioning. |
[9] The name of the applicant"s father"s business was Samagi Transport Service. The CRDD wrote:
| A March 11, 1998 news article refers to an intention by the Sri Lanken authorities to take people into custody, that is, people had not yet been arrested, yet the claimant alleges that she and her father had already been arrested. |
| The panel does not believe the claimant was arrested as alleged, and therefore we do not believe that she was detained or tortured. We note that there are no subsequent articles to confirm any actual arrests. |
[10] The CRDD summarily dismissed documentation that was before it that indicates restriction and surveillance of transportation of goods by truck in Sri Lanka and notes the activity of the Tamil Tigers in the Trincomalee district at the relevant time. It concludes:
| The panel finds that there is insufficient credible and trustworthy evidence before it in order to make a positive determination. |
Analysis
[11] I conclude that this application for judicial review should be allowed.
[12] The CRDD takes no notice of the tender age of the applicant appearing before it in circumstances that could only be described as intimidating, and in an environment far removed from that which she describes in her Personal Information Form as her "...comfortable and sheltered life in Sri Lanka...". The CRDD relies upon remarkably minute discrepancies between the applicant"s testimony, the narrative in her Personal Information Form and the documentary evidence before it, and essentially chooses to disregard documentary evidence capable of lending substantial weight to the applicant"s story.
[13] It is not for me to speculate whether the pressure being placed upon members of the CRDD to provide decisions and oral reasons at the close of hearings without significant opportunity to deliberate might have contributed to what I determine to be, on the totality of the evidence in this matter, an ill-considered and inadequately supported decision. That is a matter for the consideration of others. Suffice it to say that I am satisfied that, while the decision reached by the CRDD in this matter might reasonably have been open to it, it simply cannot be supported on the basis of the analysis contained in the written reasons of the CRDD which undoubtably reflect, very closely, oral reasons given at the close of the applicant"s hearing.
[14] In the material before the Court in this matter, the applicant challenged the CRDD decision on the basis that it was made hastily and in an ill-considered manner in order to comply with the "CRDD Regional Performance Expectations arising out of the Action Plan from the CRDD Joint National Meeting October 27, 28 and 29, 1997".
[15] Madame Justice Sharlow considered this argument in reasons for decision relating to four applications for judicial review of decisions of the CRDD, including Irripugge v. Canada (Minister of Citizenship and Immigration)2 where she wrote:
| [3] The target of this renewed attack on oral negative decisions is a document entitled "CRDD Regional Performance Expectations arising out of the Action Plan from the CRDD Joint National Meeting, October 27, 28 and 29, 1997". That document is sometimes referred to as the "Expectation Agreement" and I will use that name for convenience. |
| [4] The Expectation Agreement indicates that in the fall of 1997, certain senior officials of the CRDD agreed with each other, in principle, to adopt certain priorities relating to the handling of the workload of the CRDD. |
| [5] The matters covered by the Expectation Agreement include several items that may be loosely referred to as production targets, including processing priorities, processing times, work assignments, advance disclosures and adjournments. The section in issue in these applications is entitled "Oral Decisions" and reads as follows: |
| As a target in cases determined after a hearing, reasons for decision on the merits of the claim will be rendered orally in 60% of cases by 30 June 1998, 75% by 30 September 1998 and 90% by 31 March 1999. |
Madame Justice Sharlow accepted the position of counsel for the respondent before her that the Expectation Agreement does not and is not intended to interfere with the adjudicative function of CRDD members. She concluded on the issue of the Expectation Agreement in the following terms:
| [17] Simply put, there is no rule that obliges a CRDD member to render an oral decision in any particular case or in 90% of all cases. There is no evidence that the Expectation Agreement, or its underlying policy, have deprived CRDD members of their discretion to reserve decisions, or that CRDD members believe or have reason to believe that they have been deprived of that discretion. |
| [18] The Expectation Agreement merely states the proportion of oral decisions both positive and negative, that in the opinion of those officials charged with the management of the CRDD workload is desirable for the CRDD. According to Mr. Frecker"s [Deputy Chairperson of the CRDD] evidence, the 90% figure was based on his own view that any member of the CRDD should be, or with training should become, capable of rendering an oral decision in a relatively simple case involving, for example, the assessment of a claimant"s credibility. His estimate, based on his own experience, was that such cases represent approximately 90% of the CRDD"s caseload. |
| [19] There is no evidence that the Expectation Agreement was ever seen by any CRDD member, except those who signed it as Deputy Chairperson or Assistant Deputy Chairperson. Mr. Frecker indicated that the new policy of encouraging oral decisions was communicated to members of the CRDD by the managers in their respective regional offices. In his own discussions with members relating to the new policy, the discretion to reserve was expressly acknowledged and was not overridden by the general desire to increase the proportion of oral to reserved decisions. |
| [20] There is no evidence that CRDD members might reasonably have felt that a deviation from the oral decision targets would result in negative consequences, such as a negative performance evaluation, which could be a matter of importance to CRDD members because they are appointed for a fixed term. The evidence of Mr. Frecker indicates the contrary. He said that performance evaluations are based on a number of factors, of which the willingness and ability to render oral decisions is only one. Even then, according to Mr. Frecker, performance evaluations are focused [sic] on rationality, clarity and timeliness of decisions, not simply the method of rendering them. He noted, for example, that the objective of timeliness has been satisfactorily met by a member who does not adhere to the new policy on oral decisions because he can and habitually does render written decisions within a few days of the hearing. |
| [21] I conclude that none of the four decisions under review should be quashed solely on the basis that they were rendered orally after the implementation of the Expectation Agreement. I will go on to consider the other arguments in each application. |
[16] I adopt the foregoing analysis as my own for the purposes of this matter.
Conclusion
[17] For the foregoing reasons, this application for judicial review will be allowed, the decision of the CRDD that is under review will be set aside and the matter of the applicant"s application for Convention refugee status will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.
[18] Madame Justice Sharlow did not certify a question in Irripugge3 with respect to her conclusion as to the impact of the Expectation Agreement. My adoption of the reasoning of Madame Justice Sharlow as to the impact of the Expectation Agreement is not determinative in this matter. In the result, I will not certify a question with regard to that issue.
[19] Neither counsel recommended certification of a question with regard to any issue that is central to my determination in this matter. No question will be certified.
"Frederick E. Gibson"
J.F.C.C.
Toronto, Ontario
February 10, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: SANGITHA NADEESHANI ASSALAARACHCHI |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: WEDNESDAY, FEBRUARY 2, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: GIBSON J. |
DATED: THURSDAY, FEBRUARY 10, 2000
| APPEARANCES: Ms. Maureen Silcoff |
| Mr. Kevin Lunney on behalf of |
| SOLICITORS OF RECORD: Lewis & Associates |
| Deputy Attorney General of Canada |
FEDERAL COURT OF CANADA
Date: 20000210
Docket: IMM-1924-99
Between:
| SANGITHA NADEESHANI ASSALAARACHCHI |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
__________________
1 R.S.C. 1985, c. I-2.
2 [2000] F.C.J. No. 29 (Q.L.), (F.C.T.D.).
3 Supra, footnote 2; supplementary Order and reasons. February 2, 2000.
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