Federal Court Decisions

     IMM-4719-96

BETWEEN:

     UTHAYACHANDRAN SANDRASEGARAM,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

RICHARD J.:

     This is an application for judicial review of the decision of the Convention Refugee Determination Division, dated November 27, 1996, which found the applicant not to be a Convention refugee.

     The applicant is a 26 year old male Tamil from Jaffna, born near Valvettithurai, in Northern Sri Lanka. He fled that area to avoid being forcibly recruited into the LTTE's militia. When he arrived in Colombo, he intended to flee the country. Money was extorted from him on two occasions. He was arrested in a sweep following a bombing, detained at a police station and beaten. He was released after six days, his uncle having paid a bribe for his release.

     At the outset of the hearing, the Board stated that the only issues in his claim were credibility and IFA. I have concluded that the Board's finding on the availability of an IFA to the applicant cannot stand in the circumstances.

     The Board purported to follow the two-pronged test in Rasaratnam¹. The Board made no specific adverse findings of credibility. It accepted that the events described by the applicant which he claimed amounted to torture and persecution did occur but concluded that the totality of the applicant's experiences in Colombo did not amount to past persecution and did not give rise to a well-founded fear of persecution if he were to return to Colombo now. In addition, the Board quoted a 1996 report of the Canadian High Commission in Colombo that there has been a marked reduction in the volume of arrests and improvement in the speed of processing identity checks in the city. The Board also cited a 1996 United States Department of State Report that security forces exercised much greater restraint.

     According to the Board, there was no serious possibility that he would be persecuted if he returned to Colombo.

    

     The Board then considered whether it would be unreasonable, in all the circumstances, including those particular to the applicant, for him to seek refuge in Colombo.

     The Board found that it would not be unduly harsh for the applicant to seek refuge in Colombo. It reached this conclusion based on documentary evidence that there is a large Tamil community in Colombo that has historically provided support to Tamils and the 1996 UNHCR Report that persons may be returned to Sri Lanka in an orderly and safe manner if after a fair determination process they have been found not to warrant asylum.

     However, with respect to the applicant's particular circumstances, the Board determined that it was reasonable for him to return to Colombo because he understands and speaks some English and, further, possesses skills in entrepreneurship and is experienced in the fish processing business. This is how the Board put it:

The claimant understands and speaks some English, as evidenced by his constant answering in English and, sometimes, responding before the interpreter could finish her interpretation. The panel notes that English is one of the languages of commerce, culture and industry in Colombo. Furthermore, the claimant possesses skills in entrepreneurship and is experienced in the fish processing business. The panel finds that it is reasonable to expect the claimant to use his youth, language skills, and work experience to his full benefit in the capital city.

     The Board members concluded that he understood and spoke some English, although he testified through an interpreter, on their assessment of his conduct at the hearing where they seemed to be left with the impression that he sometimes responded before the interpreter could finish her interpretation. The passages cited to me in the transcript do not establish this. The applicant denied that he could understand or speak English at the hearing in answer to a direct question from a member of the panel and filed an affidavit in this application repeating his denial and explaining how the Board may have been led to think otherwise. On the record before me, this conclusion reached by the Board is patently unreasonable.

     The only remaining question to be resolved is whether this error is material to the finding. The Board found that it was reasonable to expect the claimant to use his youth, language skills and work experience to his full benefit in Colombo. I conclude that the Board itself considered his language skills, that is to say, his perceived ability to understand and to speak English, to be material.

     For this reason this application is allowed. The decision of the Board is set aside and the matter is sent back for re-hearing by a differently constituted panel to determine whether an IFA is available to the applicant.

     __________________________

     Judge

Ottawa, Ontario

September 10, 1997

__________________

¹      Rasaratnam v. M.E.I. [1992] 1 F.C. 706 (C.A.).