Date: 20060410
Docket: IMM-4064-05
Citation: 2006 FC 393
BETWEEN:
SUTHARMINI KAMALENDRAN
and
SINOJ KAMALENDRAN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
INTRODUCTION
[1] The Applicant Sutharmini Kamalendran (the "adult applicant") and her minor son, Sinoj Kamalendran, are Sri Lankan Tamils. The adult applicant has been separated from her husband for many years and, throughout the period of separation, she has been the sole caregiver for their son. The Applicants fled Sri Lanka on the 14th of March, 2004 and arrived in Canada some eight days later. On arrival, they filed Convention refugee claims and claims to like protection. They allege a fear of persecution or equivalent mistreatment if required to return to Sri Lanka by reason of their nationality, Tamil, their imputed political opinion and, in the case of the adult applicant, by reason of her membership in a particular social group, namely, women living without male support in Sri Lanka.
[2] In a decision dated the 2nd of June, 2005, the Refugee Protection Division (the "Board") of the Immigration and Refugee Board rejected the Applicants' claims for protection. The Applicants sought judicial review of that decision. These reasons follow the hearing of a portion of the Applicants' application for judicial review.
BACKGROUND
[3] The adult applicant was born in Jaffna. She has some ten years of education. During her adult life, much of which was spent in northern Sri Lanka, her principle responsibilities were housework and home-making.
[4] The adult applicant married in December 1990. Her and her husband's son, the minor applicant, was born the 29th of May, 1992 and is thus now 13 years of age. The adult applicant's husband left her and their son in November, 1996. All relatives of the Applicants now live outside Sri Lanka.
[5] Like many other Tamils living in the north of Sri Lanka, during the time that the adult applicant and her husband lived together, they were victims of extortion and intimidation. After being displaced from their chosen home, in April of 1996, the family moved to Vavuniya. In Vavuniya, the adult applicant's husband was taken into custody by the Sri Lankan military and was beaten. He was only released from custody on payment of a bribe to the People's Liberation Organisation of Tamil Eolan ("PLOTE"). Following the adult applicant's husband's departure from the home, the adult applicant lived alone with her son. She was arrested, harassed, assaulted and sexually exploited by PLOTE militia and forced to work outside of her home. PLOTE members informed the Sri Lankan military that the adult applicant had links to the Tamil Tigers. Between 1998 and 2001, the adult applicant was, on a number of occasions, taken into custody by the military, questioned, beaten and sexually abused. With the ceasefire agreement entered into in February, 2002, the military ceased, for a time, to bother with the adult applicant.
[6] Early in 2003, following a visit to the Applicants by family members, PLOTE members again informed on the adult applicant to the military. She was again questioned but on this occasion, she was not detained.
[7] In August of 2003, PLOTE members began to harass the minor applicant and to offer him inducements with a view to having him join their organization. The adult applicant confronted the PLOTE leaders in defence of her son. The leaders insulted and slapped the adult applicant.
[8] As earlier indicated, the Applicants fled Sri Lanka on the 14th of March, 2004.
THE DECISION UNDER REVIEW
[9] The Board was satisfied based on documentation before it that the Applicants are citizens of Sri Lanka. That being said, the Board wrote in its reasons:
The panel determines that as the claimants have not provided credible or trustworthy evidence, they are not "Convention refugees" nor are they "persons in need of protection" for a risk to life, or a risk of cruel or unusual treatment or punishment or danger of torture.
[10] After noting that it had taken into account the Chairperson's guidelines on Female Refugee Claimants Fearing Gender-Related Persecution, the Board continued:
Overall, the panel found that the claimant's evidence lacked credibility and plausibility. There were also important inconsistencies between the claimant's written and testimonial evidence and between her statements made upon her arrival in Canada and subsequent evidence.
[11] The Board briefly analyzed why it found the Applicants' evidence to lack credibility and plausibility. That being said, the Board, in its reasons, made no reference whatsoever to the extensive documentary evidence before it, in particular, the documentary evidence detailing the abuse and exploitation in Sri Lanka of women living without male partners and the continuing forced recruitment of young Tamils by the Tamil Tigers, notwithstanding the ceasefire.
THE ISSUES
[12] Counsel for the Applicants raised issues regarding "reverse order questioning" or the Chairperson's Guideline 7. Those issues, which I will describe as "procedural", were dealt with by a different judge and will be the subject of separate reasons and a separate order. Other issues, which I will refer to as "substantive" issues, raised on behalf of the Applicant, were: failure to separately deal with the claim of the minor applicant, ignoring of the substantive documentary evidence on women in Sri Lanka who are similarly situated to the adult applicant and on child recruitment by the Tamil Tigers, undue reliance on the notes of an Immigration Officer who interviewed the Applicants, and undue reliance on what counsel for the Applicant termed "trivial discrepancies".
ANALYSIS
a) Standard of Review
[13] It was not in dispute before the Court that the standard of review of a decision of the Board that is based on credibility findings is patent unreasonableness. That being said, where the Board ignores evidence before it that is directly applicable to the claim asserted by an applicant or applicants, I am satisfied that such an ignoring of evidence is fatal to the Board's decision, whether it be based on credibility or on any other ground.
b) Ignoring of evidence directly relevant to the Applicants' claim
[14] In background notes prepared in preparation for an interview with an Immigration Officer, the adult applicant indicates that she fears returning to Jaffna, that she and her son cannot afford to live in Colombo and, most importantly:
I am afraid that if my son grows up he might have to join groups whatever movement that exists
[emphasis added].
[15] I am satisfied that the foregoing makes it perfectly clear that the adult applicant's fear for her son is not merely of the experiences he had when PLOTE members tried to recruit him, but also of recruitment by groups such as the Tamil Tigers. That fear is, I am satisfied entirely reasonable given the minor Applicant's current age and his family profile.
[16] In the Immigration Officer's notes of interview, she writes:
She [the adult applicant] came for the sake of her child. She is afraid that he goes ... goes to movements.
[17] While this brief notation is not entirely clear, I am satisfied that it is consistent with a fear on the part of the adult applicant that her son will be forcibly recruited if he is required to return to Sri Lanka.
[18] In her Personal Information Form narrative, the adult applicant wrote:
Since August 2003, the PLOTE militants have been chasing my son. They stopped him in several occasions on his way to school and asked him to join them by providing false hope saying that they will give him bi-cycle and other presents. I knew they were doing this just to take revenge on me. In addition, my son also as a kid was confused and didn't know what to do. Therefore, I scolded and argued with the PLOTE militants who were chasing my son. They got angry and insulted and slapped me. The last time was in February 2004. After this only, losing the hope of living peacefully in Vavuniya and rejoining with my husband, I decided to leave for Canada at least for the sake of my son's better future and sought financial assistance from my Canadian family members and left for Canada with the help of an agent.
[19] The foregoing paragraph reflects not only the adult applicant's fear of forced recruitment of her son, but also her fear of renewed harassment and, perhaps, exploitation of herself.
[20] I have carefully reviewed the transcript of the adult applicant's testimony before the Board. I am satisfied that it is entirely consistent with the foregoing, that is to say, she reiterates with consistency her fear for herself as a woman without a male partner and her fear for her son that he might be forcibly recruited or induced into a militia or similar organization.
[21] The Board itself acknowledged the possibility that the minor applicant might be recruited. The transcript records the following intervention by the Presiding Member:
Madam, it really, you know, I mean there's certainly documentary evidence about the LTTE recruiting child soldiers And they've been universally criticized for that. But I'm not completely certain about whether or not even they would go as low as ten years old and that, you know, is an issue. But do you have any documentation concerning PLOT which is a pro-government or pro-government Tamil militia that they were forcibly recruiting young people, I mean basically kids?
[22] At the date of the hearing before the Board at which the foregoing intervention occurred, the minor applicant was, in fact, 12 years of age. On the date the Board's decision was signed, the minor applicant was 13 years of age.
[23] On the basis of all of the foregoing, I am satisfied that the adult applicant was entirely consistent, if not entirely articulate, in relation to the fears that she held for herself and her child if they were required to return to Sri Lanka. In the circumstances, I am satisfied that the Board denied fairness to the Applicants in failing to analyse the documentary evidence of abuse of women without male partners and of forcible recruitment of young Tamils that was before it, before reaching its conclusion to reject the Applicants' claims. While the Board might still have reached the conclusion that it did, that the Applicants' claims cannot be sustained, that is not the issue. The issue is simply a denial of fairness to the Applicants by failing to fully analyze their claims against the totality of the evidence that was before the Board.
c) Other "substantive" issues raised on behalf of the Applicants
[24] In light of my conclusion that the Board's decision cannot stand by reason of failure to take into account all of the evidence, I decline to turn to the other issues raised on behalf of the Applicants.
CONCLUSION
[25] In the result, based solely on the issues before me, this application for judicial review will be allowed, the decision under review will be set aside and the Applicants' claims will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel. In light of the fact that aspects of this application for judicial review are being considered by another judge and that a separate decision will issue with respect to the "reverse order questioning" or Chairperson's Guideline 7 issues, the Court will direct that the further hearing before the Board be deferred until any appeal of the decision regarding other aspects of this application for judicial review is disposed of in the Federal Court of Appeal or the time in which a party may file a notice of appeal to that Court has expired, whichever last occurs. Whether any further delay is directed is a matter for the Federal Court of Appeal to determine.
[26] At the close of hearing, counsel were advised that this application for judicial review, or, more particularly, the portions of this application for judicial review that were here before the Court, would be allowed. Neither counsel recommended certification of a question. No question will be certified.
"Frederick E. Gibson"
Ottawa, Ontario
April 10, 2006.
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