Abeyaratne v. Canada (Minister of Citizenship and Immigration), 2005 FC 1174

Date: 20050829

Docket: IMM-3189-04

Citation: 2005 FC 1174

Ottawa, Ontario, August 29, 2005

PRESENT:    The Honourable Mr. Justice O'Reilly

BETWEEN:

THAVAKULARATNAM ABEYARATNE

VICTORIA RAMANI THAVAKULARATNAM AND

THESHANTH ABEYARATNE

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]    Mr. Thavakularatnam Abeyaratne arrived in Canada in 2000 along with his wife and son. The family had fled Sri Lanka in 1996 out of fear of the Liberation Tigers of Tamil Eelam (LTTE) and the Sri Lankan Army (SLA). They originally fled to Germany. After their refugee claims were dismissed there, they moved to Switzerland where, again, they failed to obtain refugee status.

[2]    A panel of the Immigration and Refugee Board heard and dismissed Mr. Abeyaratne's claim for refugee protection in 2004.    Mr. Abeyaratne argues that the Board made numerous errors in its handling of his claim and asks for a new hearing. I find that the Board's decision is not supported by the evidence and, therefore, will allow this application for judicial review.

I.         Issues

[3]    Mr. Abeyaratne contested several areas of the Board's decision. As I have found reviewable errors in the Board's treatment of the evidence, I will confine my analysis to those errors. The other matters will be addressed by a different panel of the Board at a new hearing.

II.      Analysis

[4]    Did the Board err in its treatment of the evidence?

[5]    The Board's main finding was that Mr. Abeyaratne and his family could live safely in Colombo, notwithstanding the many problems they had previously experienced in the north of Sri Lanka. The Board noted that a ceasefire had been in effect in Sri Lanka since December 2001, the incidence of arbitrary arrests and abuse of Tamil citizens had declined, roadblocks and checkpoints were now fewer in number, and the Tamil population of Colombo had grown to 400,000. The Board purported to rely on documentary evidence for these findings. But none of the sources the Board cited contained any of the facts set out in the reasons. For example, the Board stated that the "documentary evidence indicates that since 2002, abuses of Tamils in Colombo by the Sri Lankan authorities have dropped off significantly". It referred to the 2001 Annual Report of Reporters sans Frontières as authority for that finding. However, that report is confined to descriptions of the restrictions on press freedoms in Sri Lanka, and the mistreatment of journalists. It says nothing about the treatment of the Tamil population in Colombo.

[6]    Mr. Abeyaratne claimed that he would probably be singled out for mistreatment if he were returned to Sri Lanka because of his unusual family name (it is half-Tamil and half-Sinhalese) and visible facial scars. He testified that he had been arrested in 1996 in Colombo primarily for those reasons. In its finding that persons returning to Sri Lanka are "simply waved through by security forces at the airport", the Board did not address Mr. Abeyaratne's specific concerns.     Further, the documentary evidence before the Board clearly indicated that Sri Lankan police were particularly suspicious of persons with visible scars because they were presumed to be former LTTE combatants, or victims of beatings or torture by security forces.

[7]    In my view, the Board's conclusion that Mr. Abeyaratne could return to Sri Lanka and live safely in Colombo is not supported by the evidence before it. I must, therefore, allow this application for judicial review. Counsel requested an opportunity to put forward a question of general importance for certification. However, in light of the basis for my decision, no question of general importance can arise. The case turns entirely on its particular facts. No question will be stated.

JUDGMENT

THIS COURT'S JUDGMENT IS that:

1.       The application for judicial review is granted and a new hearing is ordered;

2.       No question of general importance is stated.

"James W. O'Reilly"