Date: 20101123
Docket: IMM-1852-10
Citation: 2010 FC 1172
Toronto, Ontario, November 23, 2010
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
|
|
N. MALCOLM MAYNARD ANANDA KUMARA
FERNANDO KURUKULASOORIYA
MARIAN ANN RUKMALIE WARNAKULA
WEERASURIYA JAYATHILAKA
ANNE SAMODA FERNANDO KURUKULASURIYA
|
Applicants
|
|
|
|
|
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
Respondent
|
|
|
|
|
|
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicants are a husband, wife and minor daughter, all citizens of Sri Lanka and all of
Sinhalese ethnicity. They came to Canada and claimed refugee
protection. That claim was rejected in a decision of a Member of the
Immigration and Refugee Board of Canada dated March 10, 2010. This is an
application for judicial review of that decision. For the reasons that follow I
have allowed this application for judicial review, set aside that decision and
returned it for re-determination. No Counsel has requested certification of a
question and I find no reason to do so.
[2]
The
Member found that the claimants’ fear with respect to their continued presence
in Sri
Lanka
not to be well founded on the basis of lack of credibility. As an alternative
the Member found that the Metropolitan Colombo Region offered a safe Internal
Flight Alternative.
[3]
As
to the first issue, whether a well founded fear had been established, the
Member based the decision on five incidents found in the Record. The Member
found that because of apparent contradictions there was reason to doubt the
Applicants’ truthfulness in respect of each of the incidents thus the fear could
not be well founded. However at no time in respect of any of these incidents
were the so-called contradictions put to the Applicants so that they could
offer an explanation, if any; or clarify the matter. The Member simply lay in
the weeds, waited till the hearing is over, then pulled out apparent
contradictions and used them as the basis for disbelieving the Applicants’
claim. As Justice Russell wrote in Shaiq v. Canada (Minister of
Citizenship and Immigration), 2009 FC 149 at paragraph 77:
77 Although the RPD is not required to
raise all concerns with an applicant that are related to the Act and the
regulations, procedural fairness does require that an applicant be afforded an
opportunity to address issues arising from the credibility, accuracy or genuine
nature of information submitted. See, for example, Kuhathasan
v. Canada (Minister of
Citizenship and Immigration),
[2008] F.C.J. No. 587
at paragraph 37. Consequently, I think the RPD in the present case should have
provided the Applicant with an opportunity to address an issue that was central
to its negative credibility finding.
[4]
In
a similar vein Justice Dubé in Malala v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 94 wrote at paragraphs 23 and
24:
23 A
reading of the transcript leads me to believe that the applicant should have
been given a better opportunity at the hearing to comment or explain the
contradictions the Board saw in her testimony. Moreover, it appears that in
certain instances the Board was over-zealous in discovering contradictions
where none necessarily existed.
24 A
review of the jurisprudence in the matter, as abridged above, reveals that it
is not unanimous. It does however establish that, generally, contradictions
must be put to the applicant at the hearing to enable him or her to provide all
relevant explanations. The applicant must be afforded an opportunity to explain
fully the alleged inconsistencies. Where the Board prefers the documentary
evidence to the sworn testimony of an applicant, it must show clearly why it
does so.
[5]
While
not every apparent contradiction has to be put to an applicant, where, as here,
the decision was clearly and only based on five apparent contradictions, those
matters should have been put to the Applicants. In respect of each of those
instances the Record shows that the apparent inconsistency was never raised
with the Applicants. In respect of the bribe allegedly paid by the brother, the
Record shows that the Member overlooked the evidence that shows it was paid not
by the brother but by a broker. With respect to the identification of a distant
family member, the Record does not show, unlike the Member found, that such
member was identified as an LTTE member. With respect to why the Applicants
could not be found in a small town, the evidence shows that they were in hiding.
Further, as will be discussed later, the Member made contradictory findings as
to whether this was in fact a small town or teeming metro area. In brief, just
on the face of the Record, the Applicants should have been confronted with
these matters before the Member jumped to negative conclusions.
[6]
The
second ground dealt with an Internal Flight Alternative. The Member, found at paragraph
14 of the Reasons, that the Town of Mariwala where the Applicants
resided was “relatively small” and at paragraph 4 of the Reasons “50 kilometres
north of Colombo” thus was a
place where those who wished to harm the Applicants could track them down. Then
at paragraph 20 of the Reasons the Member found that Colombo embraced a metro
area of some 5.6 million people, including certain districts which, as pointed
out in discussion with Respondent’s Counsel, included communities within 50 kilometres
of Colombo. Mariwala was found to be within 50 kilometres yet the metro Colombo area Member
found provided a viable Internal Flight Alternative.
[7]
Which
is Mariwala or Columbo then –a place where the Applicants can readily be found
– or a teeming metropolis where the Applicants can presumably blend in?
[8]
Further,
while the evidence in the record shows that the main LTTE army has been
defeated, the Record, as pointed out by Respondent’s Counsel, also shows that
pockets of LTTE adherents remain who may wish to cause harm, particularly in Colombo.
[9]
The
decision must be set aside and returned for re-determination.
JUDGMENT
For the Reasons provided:
THIS COURT
ORDERS AND ADJUDGES that:
1.
The
application is allowed;
2.
The
decision of the Member of the Immigration and Refugee Board of Canada dated
March 10, 2010 is set aside and the matter is returned for re-determination by
a different Member;
3.
There
is no question to be certified;
4.
No
Order as to costs.
“Roger T. Hughes”
Email this Content