IMM-1924-96
BETWEEN:
SIRISENA BALANGODA,
AROSHA UPPALA BALANGODA,
PUSHPA CHANDRANI BALANGODA,
Applicants,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
HEALD, D.J.:
This is an application for judicial review of a decision dated May 21, 1996 by the Convention Refugee Division of the Immigration and Refugee Board (the "Division"). By that decision the Division decided that the applicants - father Sirisena, mother Pushpa and son Arosha were not Convention refugees.
FACTS
The applicants are Sinhalese living in Sri Lanka. The events which form the basis for the applicants claim to refugee status occurred in October of 1994. A close friend of the applicant father, a Tamil named Maheswaran was living with the applicant and his family on an intermittent basis. On October 25, 1994 when the applicant father and Maheswaran were both away from home, the police came to the house and inquired as to whether there were any Tamils living in the home. They then proceeded to take the applicant son into custody. The son was interrogated concerning the whereabouts of his father and of Maheswaran. There was evidence before the Division that the son was burned with cigarettes and hot steel; a bag filled with chili pepper was placed over his head and held there until he began to cough and was unable to breath; he was beaten on his back with a "sloan" pipe filled with hot sand.
Unfortunately, the tribunal failed to mention or refer to the son's evidence concerning his torture. As a consequence, there is no finding by the Division as to the credibility of the son with respect to this evidence. In my view, the son's evidence in this regard is extremely relevant. I so conclude because both his father and mother referred in some detail to that evidence. It is clear to me from the record that all the applicants herein had a bona fide subjective fear of persecution, due in large part to the torture of the son as referred to supra.
I think also that in the circumstances of this case, the unspeakable torture of the son which is uncontradicted on this record,1 constitutes an objective basis as well for all of these applicants to fear other incidents of a similar nature.
For the foregoing reasons, I have concluded that this application for judicial review should succeed. The application for judicial review is allowed. The Division's decision of May 21, 1996 is set aside and the matter is remitted to a differently constituted panel of the Division for rehearing and redetermination.
CERTIFICATION
At the conclusion of the oral hearing, both counsel asked for some time within which to consider whether this was a case for certification of any serious questions of general importance pursuant to Section 83 of the Immigration Act. By order dated May 23, 1997, I gave counsel for the respondent until May 27, 1997 and counsel for the applicants until May 29, 1997, to file and serve any such proposed questions. I am now advised by the Registry that neither counsel will be proposing any questions pursuant to Section 83.
I agree with counsel that this is not a proper case for Section 83 certification.
Deputy Judge
Ottawa, Ontario
May 29, 1997
__________________
1 See Tribunal Record, pages 15 and 16, paras 8-14 incl. These beatings and torture are substantiated by the report of Dr. Les Richmond: see Applicant's Record, page 118.
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