Date: 19980925
Docket: IMM-3183-97
BETWEEN:
SIVARAJAN CHELLIAH BALASINGHAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] In concluding that it would not be unduly harsh for the claimant to seek refuge in Colombo as an internal flight alternative, the Convention Refugee Determination Division stated:
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The panel finds it significant that the United Nations High Commission for Refugees (UNHCR) has taken the position that persons may be returned to Sri Lanka in an orderly and safe manner if, after a fair determination process, they have been found not to warrant asylum.11 Documentary evidence submitted by counsel post hearing, shows no persuasive evidence with respect to reversing the previous UNHCR policy. |
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| 11 Exhibit R-1, National Issue Package, September 1996, section 1.5, Conditions for Tamils in Sri Lanka: An Overview, Social Affairs Reporting Unit, Canadian High Commission, Colombo, Sri Lanka, January 1996, p. 1.5.7. |
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The post-hearing documentary evidence referred to by the tribunal is the March 1997 UNHCR Background Paper on Refugees and Asylum Seekers from Sri Lanka, a report issued some six months after its earlier briefing of September 1996. In its later report of March 1997, the UNHCR noted under the heading Internal Flight Alternative:
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According to reports on the human rights situation in the country and the international jurisprudence which has developed, internal flight alternative may be difficult, and in many instances impossible to apply in the context of Sri Lanka, particularly for individual refugees or small families ... [Emphasis added.] |
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[2] The respondent concedes that the tribunal failed to assess the March 1997 UNHCR statement on internal flight alternative and to provide reasons for preferring the September 1996 report of the same organization. The tribunal erred in concluding that this individual has a safe haven in Colombo without considering the conflicting statement in the March 1997 UNCHR report.1
[3] The respondent does not concede, however, that the tribunal"s error warrants this Court"s intervention. For the respondent, the tribunal"s finding concerning the applicant"s lack of credibility is directed against all of his evidence, including the allegations in his personal information form. As I understand this argument, the tribunal rejected the applicant"s fear of persecution concerning the events which he states occurred in northern Sri Lanka and, therefore, its error concerning the UNHCR documentary evidence with respect to the internal flight alternative is without significance.
[4] I disagree. The tribunal clearly identified the internal flight alternative as the main issue, both at the outset of the hearing and in its reasons. Its negative credibility finding focussed on two discrepancies between the applicant"s personal information form and his testimony concerning the conditions of his release from detention in Colombo. The tribunal"s conclusion that it "does not believe the claimant" is directed, in my opinion, only to the issue of his detention in Colombo. In the words of the tribunal, "the claimant added the information, at the hearing, in order to negate an IFA". If the tribunal intended that its credibility assessment also negate the information concerning the applicant"s fear of persecution in northern Sri Lanka, it was required to draw that conclusion in clear and unmistakable terms.2 It did not do so.
[5] Accordingly, the application for judicial review will be allowed, the decision of the C.R.D.D. will be set aside and the matter will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.
[6] Neither party suggested the certification of a question.
Judge
Ottawa, Ontario
September 25, 1998
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1 See also Muralidharan v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 483 (QL) (F.C.T.D.) where the tribunal"s decision was set aside for its reliance on the 1996 UNHCR report without apparent regard for its more recent March 1997 statement.
2 Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236, 15 Imm. L.R. (2d) 199 (F.C.A.).
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