Date: 2080115
Docket: IMM-966-07
Citation: 2008 FC 48
Ottawa, Ontario, January 15,
2008
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
RAJAKARIYA
KANESARATNASINGHAM
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Rajakariya Kanesaratnasingham is a 48 year-old Tamil citizen of Sri
Lanka. He arrived in Canada in 2004 after enduring what he described as a
variety of forms of mistreatment on the part of the Liberation Tigers of Tamil
Eelam (LTTE), the Sri Lankan Army (SRA) and the Eelam People’s Democratic Party
(EPDP). He claimed refugee protection here, but a panel of the Immigration and
Refugee Board dismissed his claim for a lack of reliable evidence.
[2]
Mr. Kanesaratnasingham argues that the Board erred in two areas: (1) It
failed to conduct a full analysis of his claim; and (2) It made unwarranted
negative credibility findings against him. I agree with Mr. Kanesaratnasingham
on the first ground and must, therefore, allow this application for judicial
review and order a new hearing before a different panel.
I. Issue
[3]
Did the Board conduct a full analysis of Mr. Kanesaratnasingham’s claim?
[4]
Given my conclusion that a new hearing is warranted on this issue, it is
unnecessary for me to address the various credibility findings that Mr.
Kanesaratnasingham characterized as erroneous.
II. Analysis
(1) Factual
Background
[5]
Mr. Kanesaratnasingham worked in a hardware store during the 1980s and
then started his own paint business in 1985. He operated the business for about
ten years and then starting earning money selling fuel. Over the years, he says
he was arrested and beaten by the SRA, and was forced to pay bribes to the LTTE
and the EPDP, each of whom suspected he was helping the other. He finally
decided to leave after the EPDP threatened to harm him and his wife because they
had failed to vote for the EPDP in a recent election.
(2) The Board’s
Decision
[6]
The Board found that Mr. Kanesaratnasingham had failed to produce
sufficient reliable evidence to support his claim. For example, he failed to
produce business records or medical reports that would have corroborated his
claims of extortion and physical abuse. In addition, the Board found
inconsistencies, implausibilities and omissions in Mr. Kanesaratnasingham’s
testimony. As a result, it concluded that Mr. Kanesaratnasingham had not shown
a well-founded fear of persecution or proved he was at risk of cruel or unusual
treatment or punishment.
(3) Discussion
and Conclusion
[7]
The Board accepted that Mr. Kanesaratnasingham was who he said he was,
even though he had used false documents to enter Canada. His genuine documents
- an identity card, marriage certificate, birth certificate and business
registration - proved that he was a Tamil male from the north of Sri Lanka. He
testified before the Board in the Tamil language. While the Board was not
satisfied that the evidence showed that Mr. Kanesaratnasingham lived in a
particular town, or that certain events took place in particular locations, it
did not conclude that Mr. Kanesaratnasingham was not a Tamil male from the
north of Sri Lanka. Nor did the Board refer to documentary evidence showing
that persons in Mr. Kanesaratnasingham’s circumstances were at serious risk of
persecution given the general situation of armed conflict and violence in
northern Sri Lanka, both at the time he left and at present.
[8]
In my view, the fact that Mr. Kanesaratnasingham’s documentary evidence
was scant and his testimony somewhat inconsistent in some areas was not a basis
on which to conclude that his claim was entirely unfounded. There remained
evidence before the Board, including Mr. Kanesaratnasingham’s uncontradicted
oral testimony and objective documentary evidence, that was capable of
sustaining a valid claim for refugee protection. Accordingly, there was some
basis for believing that persons in Mr. Kanesaratnasingham’s circumstances
would be at risk of persecution if they returned to Sri Lanka. In my view, the
Board failed to address that possibility and, therefore, did not carry out a
complete analysis of Mr. Kanesaratnasingham’s claim as it was required to do,
even though it had concerns about some of Mr. Kanesaratnasingham’s evidence: Kathirkamu
v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J.
No. 592 (QL) at para. 47; Kamalanathan v. Canada
(Minister of Citizenship and Immigration), [2001] F.C.J. No. 826
(QL) at para. 25; Seevaratnam v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 694 (QL) at para. 11.
[9]
Accordingly, I must allow this application for judicial review and order
a new hearing before another panel of the Board. Neither party proposed a
question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
The
application for judicial review is allowed and a new hearing before
another panel of the Board is ordered;
2.
No question of general importance is stated.
“James
W. O’Reilly”
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