Date: 19990426
Docket: IMM-2322-98
BETWEEN:
MOHAMED YOOSUF MOHAMED IQBAL
MOHAMED IRFAN YOOSUF
BISHRUL FAZILAT MOHAMED
Applicants
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of the written decision of the Immigration and Refugee Board, Convention Refugee Determination Division, dated June 3, 1998 in which it was determined that the applicants are not Convention refugees. The applicants were initially advised orally of the decision on April 29, 1998. They seek an order setting aside the decision of the Board and granting them a new hearing.
[2] The applicants are a couple and their six year old son, all citizens of Sri Lanka. They alleged that they are Tamil speaking Muslims. The main applicant began experiencing problems with the LTTE (Tamil Tigers) in 1995. He claims that he had a poultry business and the LTTE would extort money from him. In 1996, he was arrested by soldiers of the Sri Lankan army for giving money to the LTTE. He claims he was detained and beaten; he had to pay the soldiers in order to be released.
[3] The main applicant claims that during the next year the LTTE and the army continued to extort money from him. In June 1997, the LTTE requested that the main applicant deliver three hundred chickens for their militants; his brother assisted him. The army arrested them and confiscated his identity card to ensure that he could not travel. Both were kept in detention and eventually the main applicant was released. He decided to flee because he realized that he was at the mercy of both the LTTE and the army. Having no identity card, he bribed a postal worker who hid him in a postal truck and took him from Eravur to Colombo. In Colombo, the applicant was arrested by the police at a lodge raid. He paid a bribe to be released and fled the country with his family.
[4] The applicants submit that the Board was vague as it relates to the evidence upon which it relied to make its determination; that it is apparent from documents that Tamil speaking Muslims residing in the north are faced with a dilemma, as encountered by these applicants, where the LTTE and the army make unreasonable demands of them and they are subjected to constant harassment. It is argued that this allegation is supported by affidavits of experts which were submitted to the Board. None of this evidence was referred to or commented on by the Board.
[5] The documentary evidence upon which the Board relied to the effect that Tamil speaking Muslims are not subjected to persecution in the north was contradicted by expert affidavits filed in support of the applicants' claim.
[6] It is evident from the reading of this decision that these applicants were not provided with an objective hearing by this Board. It concluded that since they could provide no identity documents, they did not believe they were Sri Lankans, their credibility was suspect and this was the basis for disbelieving that the main applicant was being persecuted while residing in the north of Sri Lanka.
[7] The undisputed evidence indicated that the army had taken the main applicant's identity documents in order to restrict his travel. The transcript reveals that in September of 1997, upon instruction from counsel, the main applicant wrote his village Mosque requesting that they forward identification papers for himself and his family as well as a marriage certificate. Within two months he received a reply that they had to contact some government agency in order to obtain the necessary documents. They were not available before the Board at the opening of the hearing in April of 1998. Counsel for the applicants explained that their had been a mail strike in Sri Lanka which persisted for some two or three months; counsel then requested an adjournment in order to further pursue avenues to obtain the necessary identification documents.
[8] The panel refused the adjournment and rendered oral reasons dismissing the applicants' refugee claim on the same date that it convened. They rendered their written decision some five weeks later. There is evidence that counsel was able to produce identification documents shortly after the hearing but this was completely ignored by the panel.
[9] The opinion of only one expert supports the Board's finding that Sri Lankan Muslims living in the north are not customarily harassed by the army. The expert affidavit evidence filed by counsel for the applicants maintained that this opinion was unreliable; it severely criticized it and held it to be incorrect. A Board need not refer to all documentary evidence in summarizing their reasons; this is well established in law. However, when expert affidavit evidence is before the Board as well as other documentary evidence raising some doubt or contradicting the documentary evidence put forth by the refugee claims officer, the Board should provide some explanation in its reasons as to why they preferred the expertise upon which they relied and should at least comment as to why they are discounting that provided by the applicants' counsel, which they failed to do.
[10] The most flagrant finding in the Board's decision concerns the lack of identity documents. The Board chose to discredit the applicants' testimony and concluded that they doubted that they were from Sri Lanka. How does the Board explain the fact that an interpreter proficient in the Tamil language was required at the hearing and then conclude that the applicants were not Tamil Muslims living in the north of Sri Lanka; further, since documentary evidence indicates that most Muslims living in the vicinity of Colombo are not conversant with the Tamil language?
[11] There were many other arguments submitted by counsel for the applicants pointing out other serious lacunas in the decision rendered by the Board but, since I have already commented on the two principal arguments, I shall not address the other issues.
[12] The application for judicial review is allowed. The decision of the CRDD is set aside and the matter is returned for redetermination before a differently constituted panel.
JUDGE
OTTAWA, Ontario
April 26, 1999
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