Date: 20071019
Docket: IMM-4685-06
Citation: 2007 FC 1084
Toronto, Ontario, October 19,
2007
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
CHESTER DIRK FERDINANDS
SHANIKA HIMANI FERDINANDS
GAYAN DIVAKE FERDINANDS (By his
litigation guardian)
ENAKSHI DIYANA FERDINANDS (By her
litigation guardian)
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Chester Ferdinands and his family claimed refugee protection in Canada
on grounds of religious and political persecution in Sri Lanka. They say that
their problems arose from renting out part of their house to a young Tamil
family. This upset Bhuddist neighbours and political groups who demanded the
eviction of the Tamils and threatened the applicants.
[2]
A panel of the Immigration and Refugee Board dismissed the applicants’
claims because of a lack of credible evidence. Part of their hearing took place
by videoconference. The applicants argue that they were denied a fair hearing
because of the poor functioning of the videoconference equipment. In addition,
they submit that the Board made a number of errors in its fact-finding. They
ask me to order a new hearing before the Board.
[3]
In my view, the applicants received a fair hearing. However, the Board’s
conclusion is not supported by the evidence. Therefore, I will allow this
application for judicial review.
I. Issues
1. Did
faulty videoconference equipment result in an unfair hearing?
2. Did
the Board err in finding that there was a lack of credible evidence supporting
the applicants’ claims?
[4]
The applicants also argued that the Board had failed to consider the
claims of the entire family and had erred in comparing Mr. Ferninands’
testimony with his personal information form (PIF) when the latter was not made
an exhibit in the proceedings. These issues had not been raised prior to the
hearing and the Minister, therefore, had no opportunity to respond to them. In
the circumstances, I decline to deal with them.
II. Analysis
1. Did
faulty videoconference equipment result in an unfair hearing?
[5]
The applicants argue that there were technical difficulties during their
teleconference that resulted in confusion and, ultimately, in unwarranted adverse
credibility findings being made against them. They suggest that these problems
were compounded by the fact that the Board refused to allow their counsel to
question them first.
[6]
I have reviewed that transcript of the hearing and cannot see any such
difficulties. Nor do I see any occasions where the applicants, or their counsel,
objected to the manner in which the hearing was unfolding or expressed any
difficulty in understanding questions. I can find no basis for concluding that
the videoconference compromised their right to a fair hearing.
2.
Did the Board err in finding that there was a lack of credible
evidence supporting the applicants’ claims?
[7]
The applicants argue that the Board erred in finding that Mr.
Ferninards’ testimony was vague and inconsistent. They submit that these
difficulties, if any, related to insignificant areas of the evidence and should
not have resulted in a dismissal of their claims.
[8]
The following are the grounds for the Board’s negative credibility
findings:
• Mr.
Ferdinands mentioned that churches had been burned but was unable to identify
where this happened;
• Mr.
Ferdinands testified that he feared the Liberation Tigers of Tamil Eelam (LTTE)
but he was unclear whether this was because the LTTE was protecting his Tamil
tenant or because the LTTE suspected Mr. Ferdinands of providing information to
security forces;
• Mr.
Ferdinards gave various answers to the question whether he knew that his tenant
was a member of the LTTE;
• Mr.
Ferdinands could not explain why a letter from his lawyer referred to the
tenant as a long-time friend of the Ferdinands family when Mr. Ferdinands
testified that he had not known the tenant long and wanted him out of the
house.
[9]
Having made these findings, the Board found that Mr. Ferdinands was not
a refugee but an “immigrant in disguise”. Further, it concluded that it could
not give any weight to the other documentary evidence tendered by the
applicants.
[10]
The applicants point out that Mr. Ferdinands did identify some locations
where churches had been burned. The Board clearly erred on that issue. The
other findings of the Board appear to have some support in the evidence.
[11]
However, I fail to see how those findings give rise to a conclusion that
Mr. Ferdinands’ evidence should be dismissed in its entirety and the
corroborating documentary evidence disregarded completely. The problems pointed
out by the Board do not touch the main thrust of the applicants’ claim to have
feared reprisals from persons who disapproved of the Ferdinands’ Tamil tenants
and regarded the Ferdinands as LTTE sympathizers. There remained a substantial
amount of evidence supporting that claim that was not discussed by the Board.
[12]
Where, as here, there is evidence that supports the main pillars of an
applicant’s claim, the Board must consider whether that evidence is sufficient
to support a conclusion that the applicant has a well-founded fear of
persecution, notwithstanding that there may be problems in some areas of his or
her testimony: M.M. v. Canada (Minister of Employment and
Immigration), [1991] F.C.J. No. 1110 (F.C.A. )(QL).
[13]
In my view, the Board committed a reviewable error in its analysis of
the evidence and the applicants are entitled to a new hearing before a
different panel. Neither party proposed a question of general importance for me
to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT
IS THAT:
1.
The
application for judicial review is allowed. The matter is referred back
to the Board for a new hearing before a different panel;
2. No
question of general importance is stated.
“James
W. O’Reilly”
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