Date: 20080306
Docket: IMM-2766-07
Citation: 2008
FC 311
Toronto, Ontario, March 6, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
SUGANTHAN
SELLATHURAI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
In the
decision presently under review, the Refugee Protection Division (RPD) found as
follows:
The claimant is a 28-year-old Hindu Tamil
male with grade 9 of education and has last worked as a driver. He is a citizen
of Sri Lanka. He left his country on
November 29, 2004, arrived in Canada on March 12, 2005, after
sojourning in the United States of America (USA) over three months, and made
his claim the same day. Grounds for his claim are enumerated in his Personal
Information Form (PIF) at page 9.
(Decision, p.1)
However, because the RPD did not find the Applicant credible
with respect to his residency in Sri Lanka
before making his claim, the RPD found that it was not obliged to provide an
analysis under s.97 of the IRPA.
[2]
For two
reasons I find that the decision under review is made in reviewable error. It
is quite apparent from the decision that a principal focus of the RPD’s is with
respect to whether the Applicant was a resident of the North of Sri Lanka in a
specific timeframe. In reaching the conclusion that the Applicant failed to
meet the standard of proof to establish this fact, it is admitted that the RPD
did not consider an essentially important piece of documentary evidence which,
if accepted, established the Applicant’s residence in the North since his birth
to 2000. In my opinion, the RPD’s failure to consider this piece of evidence
constitutes a reviewable error.
[3]
In
addition, regardless of the Applicant’s proof of residency in Sri Lanka, since the
RPD accepted that he is a Tamil male who is a citizen of Sri Lanka, I find that
it was incumbent on the RPD to engage in an analysis of the available evidence
with respect to the Applicant’s claim for protection under s.97 of the IRPA
(see eg. Thanabalasingam v. Canada (Minister of Citizenship and Immigration)
2008 FC 34).
[4]
As a
result, I find that the decision under review is patently unreasonable.
ORDER
Accordingly, I set aside the decision under
review and refer the matter back to a differently constituted panel for
re-determination.
There is no question to certify.
“Douglas
R. Campbell”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2766-07
STYLE OF CAUSE: SUGANTHAN SELLATHURAI v. THE
MINISTER OF
CITIZENSHIP
AND IMMIGRATION
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: March
6, 2008
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: March
6, 2008
APPEARANCES:
|
MICHEAL CRANE
|
FOR THE APPLICANT
|
|
BRIDGET A.
O’LEARY
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
BRIDGET A.
O’LEARY
BARRISTER AND
SOLICITOR
TORONTO, ONTARIO
|
FOR THE APPLICANT
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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