Federal Court Decisions

IMM-1142-96

BETWEEN:

MOHAMED FAIZ MOHAMED ARIFF,

Applicant,

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

Respondent.

REASONS FOR ORDER

NOËL, J.:

     This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ["the Board"] wherein it was determined the Applicant was not a Convention refugee.

     The Board in its reasons quoted from the Applicant's Personal Information Form the incidents of arrest and detention at the hands of the Sri Lankan government:

In October 91 I was arrested by the police and detained at the Badulla Police. I was accused of helping the LTTE. I was badly beaten and questioned about my alleged involvement with the LTTE. I was questioned about the Tamil youth treated at the hospital. I was accused of treating LTTE members without the knowledge of the hospital authorities. My denials were not accepted, as the Police considered all Tamil youths as militants or supporters of the militants. I was released after about 3 weeks in custody. My wife had to bribe the officer in charge of the Police Station to get me released. I was released on condition that I should leave Baddula immediately.

In May 92 an army truck was fired upon by the LTTE near my shop. I was arrested along with two of my assistants by the police soon after the attack. We were accused of helping the LTTE as the attackers had fled through the parking lot of my shop. I was tortured and questioned. I was detained at the Kalmunaui Police Station for 6 days. The Kalmunai Traders Association secured my release.

In March 1994 two LTTE men were caught by the home guards while leaving my house with the third instalment for money I had paid them. I was also arrested by the home guards and was handed over to the police. I was accused of helping the LTTE. I was beaten and questioned. My wife was also arrested and assaulted. She was released in 5 days. The police threatened to kill me for not reporting about LTTE to them. While I was detained the LTTE fired upon my house one night and left a note saying that they were going to kill me for helping the authorities to arrest two of their men.

     The panel determined that these excerpts were not evocative of a well founded fear of persecution in the following terms:

The panel notes that the claimant was released by the authorities after being arrested in March, 1994 because he had chicken pox. He was told to stay home and then report to the authorities when he was well. The panel does not find it plausible that the authorities would release some one whom they considered to be an LTTE member or an active supporter. The authorities brutality to such people is well-known. The panel determines that he does not have a well-founded fear of persecution based on the experience which he had with the government authorities.

     Nothing more was said by the Board on this subject. As I intimated during the hearing, the decision cannot stand. The Board made no adverse finding regarding the Applicant's credibility. It proceeded on the basis that the account of the events as they were adduced the Applicant was accurate subject only to his last release, the plausibility of which was put into question for the reason expressed in the above passage.

     The Board could not by reference to this sole finding which was expressly limited to the Applicant's last release, proceed to ignore the other two instances of detention and torture. This is not a case where the Board seized upon this limited finding to impeach the credibility of the defendant as a whole. Indeed, it avoided making any suggestion that the Applicant's testimony was thereby put in doubt. It follows that the Board had to confront the other instances of detention and torture adduced by the Applicant and explain why these were to be disregarded. That it failed to do.

     The application is allowed, and the matter is returned before a differently constituted panel.

     Marc Noël

                                     Judge

Ottawa, Ontario

January 15, 1997