Date: 20030902
Docket: IMM-4620-02
Ottawa, Ontario, this 2nd day of September, 2003
Present: The Honourable Justice James Russell
BETWEEN:
GANESHALINGAM PONNIAH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated August 16, 2002 (the "Decision") denying Ganeshalingam Ponniah's, sometimes referred to in the documentation as Ponniah Ganeshalingam, (the "Applicant") refugee claim (the "Claim") under theImmigration and Refugee Protection Act (the "Act").
BACKGROUND
[2] The Applicant claims to be a male 40-year-old citizen of Sri Lanka who arrived in Canada seeking refugee status on December 7, 2001. The Applicant based his refugee claim on a fear of persecution due to membership in a particular social group.
[3] He alleges that, prior to leaving Sri Lanka in 1988 to work in Saudi Arabia, he was forced to labour for the Liberation Tigers of Tamil Eelam ("LTTE") and was beaten and detained by that group when he expressed his reluctance. Following his release by the LTTE, the Sri Lankan security forces suspected him of involvement with the LTTE and he was assaulted and detained for six weeks.
[4] Upon his return to Colombo in 1996, he says that he faced continuous harassment, detention and assaults by security forces, particularly at numerous checkpoints set up in that city.
[5] In February, 2001, he went to the police station to renew his resident pass for Colombo. He was accused of supporting the LTTE, detained and assaulted. The police called the Criminal Investigation Department ("CID") and members of the CID interrogated him for several hours and beat him with plastic pipes.
[6] When he was released from prison, he claims that security forces told him to leave Colombo within two weeks, or he would be kept in prison under the Prevention of Terrorism law.
DECISION UNDER REVIEW
[7] The Board dismissed the Claim on grounds of credibility and because the Applicant did not have a well-founded fear of persecution if he returned to Sri Lanka.
ISSUES
[8] The Applicant states that the issues are as follows:
Did the Board base its conclusions on irrelevant considerations?
Did the Board make conclusions unsupported by evidence?
Did the Board fail to consider relevant evidence supporting the Applicant's claim?
Did the Board fail to provide adequate reasons in concluding that the Applicant did not have a well founded fear of persecution?
STANDARD OF REVIEW
[9] In accordance with Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 (Fed. C.A.), the applicable standard of review in this case is patent unresonableness.
ANALYSIS
[10] I find that the Board erred in a number of ways in making adverse credibility findings against the Applicant and his wife. The Board appears to have relied upon a number of curious cultural generalizations in arriving at conclusions regarding the Applicant's wife's knowledge of the location of her passport. I concur with the Applicant's assertion that stereotypes and generalizations about the people of an entire nation are not an appropriate basis for making a decision. The Board is required to make credibility findings based solely on relevant considerations. Assumptions based on cultural generalizations, particularly those relating to ancillary issues, are not relevant considerations.
[11] The Board in this case seemed to spend a great deal of energy questioning the credibility of the Applicant's wife, while focussing very little of its Decision on the Applicant himself. I note that the Board alluded to complex theories relating to the relationship between the Applicant and his wife and the history of attempts at family reconciliation that pre-dated the claim, but did not fully develop its theories or provide satisfactory support for its conclusions. I note, for example, that the Board questions how the Applicant's wife could describe her mother as being elderly at the age of 46, while the Applicant described himself as a "young Tamil male" at nearly 40 years of age. Such matters are peripheral to the central tasks before the Board.
[12] Counsel for the Respondent, while admitting there are problems with the Decision, invites me to consider the Board's apparently obsessive concerns over the credibility of the Applicant's wife as connected to the Boards underlying concern with the family unification and sponsorship history of the Applicant and his wife. The wife's credibility was relevant because the Board considered the Applicants refugee claim to be a sham attempt at family reunification.
[13] The Respondent relies upon Law Society of New Brunswick v. Ryan, [2003] S.C.J. No. 17 as authority for the proposition that a court must not interfere unless the party seeking review has positively shown that the decision, taken as a whole, is unreasonable, and that a decision will only be unreasonable if there is no line of analysis within the given reasons that could reasonably lead the Board from the evidence before it to the conclusion at which it arrived. In addition, the Respondent refers me to Stelco Inc. v. British Steel Canada Inc., [2000] F.C.J. No. 286 Fed. (C.A.) as authority for the proposition that, even if a tribunal commits a reviewable error on some of its findings of fact, its decision should still be upheld if there are other facts upon which it could reasonably base its ultimate conclusion.
[14] But the problem with the case at bar is that the Board does not clearly articulate what it is doing and why, particularly when it shows its excessive concern with the testimony of the Applicant's wife.
[15] The Board focusses inordinately on obscure issues relating to the Applicant's wife, forms partially developed theories, and comes to conclusions without providing an adequate basis in terms of supporting arguments. The Board has an obligation to explain and rationalize the basis for its conclusions and what evidence it considers relevant to those conclusions. The Board's failure to do this was a reviewable error.
[16] As regards the Boards treatment of the Applicant's own evidence, the Applicant submits that specific allegations of detention and assault, for which supporting evidence was provided, were not assessed in the Board's analysis of whether the Applicant had a well-founded fear of persecution. The Applicant submits that it is an error to make a plausibility finding without referring to the documentary evidence filed in support of an applicant's claim and without providing any real rationale for the finding.
[17] As Cullen J. indicated in Bains v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 497 (Fed. T.D.):
... The Refugee Division, in my view, is obligated, at the very least, to comment on the information. If the documentation is accepted or rejected the applicant should be advised of the reasons why, especially as the documentation supports the applicant's position.
In Maldonado v. M.E.I. (1980) 2 F.C. 302 at 305, Heald, J. writes:
It is my opinion that the Board acted arbitrarily in choosing without valid reasons, to doubt the applicant's credibility concerning the sworn statements made by him and referred to supra. When an applicant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness. On this record, I am unable to discover valid reasons for the Board doubting the truth of the applicant's allegations above referred to.
It is my decision that the Refugee Division erred in law when it failed to advise whether it accepted or rejected the three documents specifically applicable to the applicant, and for that matter, failed to mention whether they even considered this evidence. Also, given the requirement to show why they rejected the applicant's sworn evidence which is presumed to be true, the Refugee Division did not meet the standard necessary as described by Heald, J. in Maldonoda (supra).
[18] The Respondent points out that the Board's conclusion about the Applicant's knowledge about what the acronym CID stood for (he said it meant "spying" to him and the Board felt this defied belief), and the Board's finding that if the CID really suspected him of aiding the LTTE "he would not have been released and allowed to remain in Colombo for two weeks" are the key aspects of the Decision and they cannot be said to be perverse or patently unreasonable.
[19] There are two problems with this. It is difficult to conclude from a decision that devotes only two short paragraphs to the "key" elements that they are, in fact, the key elements as far as the Board is concerned. But, more importantly, the Board does not address why it rejects the Applicant's testimony on these matters. It merely says the Applicant "did not give a reasonable reply" over the release issue and that "the documentary evidence does not support the claimant's contention."
[20] This is not sufficient, particularly if, as the Respondent argues, these matters constitute the key elements of the Decision.
[21] I find that the Board failed to adequately refer to the documentary evidence provided by the Applicant, and therefore erred in law. The Board also failed to give adequate reasons relating to some of its assertions regarding the Applicant's responses to questioning and documentary evidence which the Board indicated did not support the Applicant's contentions relating to his treatment by the CID. This was also an error in law.
ORDER
THE COURT HEREBY ORDERS THAT:
1. The application for judicial review is allowed, the August 16, 2002 decision is set aside and the matter is remitted for reconsideration by a differently constituted panel.
2. No question will be certified.
"James Russell"
J.F.C.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4620-02
STYLE OF CAUSE:GANESHALINGAM PONNIAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY JULY 23, 2003
REASONS FOR ORDER
AND ORDER BY: RUSSELL, J.
DATED: RESERVED
APPEARANCES BY: Mr. Linus Ward-Anderson
For the Applicant
Mr. Brad Gotkin
For the Respondent
SOLICITORS OF RECORD: Mr. Linus Ward-Anderson
Roach, Schwartz & Associates
Barristers & Solicitors
688 St. Clair Avenue West
Toronto, ON M6C 1B1
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20030902
Docket: IMM-4620-02
BETWEEN:
GANESHALINGAM PONNIAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER