Date: 19990617
Docket: IMM-3589-98
BETWEEN:
GNANASAKUNTHALA MYILVAGANAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.
[1] The applicant is a 64 year old woman who is a citizen of Sri Lanka. She claims a well founded fear of persecution in the north of Sri Lanka by the Liberation Tigers of Tamil Eelam (LTTE) and in Colombo by the Sri Lankan police. Her claim was rejected by the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board on June 25, 1998.
[2] The applicant's claim was denied on the basis of the CRDD's negative assessment of her credibility and its finding that she has an internal flight alternative in Colombo.
[3] I agree with counsel for the applicant that the CRDD's assessment of the applicant's credibility is fatally flawed.
Credibility - the checkpoints
[4] At the hearing the applicant gave evidence of her flight from a refugee camp at Mankulam to Colombo. A document in evidence before the CRDD says that journey required passing through an LTTE checkpoint at Omanthai and a Sri Lankan army checkpoint at Thandikulam. There is no map in the record that makes it possible to understand the geography of the area.
[5] The CRDD said that the applicant's evidence was that the LTTE checkpoint was at Thandikulam. In fact, she said that the army checkpoint was at Thandikulam. She said they went from Mankulam by bus to Thandikulam, but the bus stopped at a LTTE checkpoint one mile short of the Sri Lankan army checkpoint and they had to walk that mile. She had to go through both checkpoints. She was asked whether she passed through Omanthai, and she replied that she did not know that place.
[6] The applicant's evidence of the location of the army checkpoint is not inconsistent with the documentary evidence. Both say the army checkpoint is at Thandikulam, and the applicant said that the LTTE checkpoint was one mile away from the army checkpoint.
[7] I agree with counsel for the applicant that this aspect of the CRDD's conclusion was based on a misapprehension of the applicant's evidence and cannot stand.
Credibility - son's birth certificate
[8] It is difficult to make sense of the CRDD's statements about the applicant's son's birth certificate. She came to Canada alone, and presented her own identity papers. Her identity and nationality are not in issue. There is no reason for her to have shown her son's birth certificate to the authorities at the time she came to Canada, or to have included a reference to that document in her personal information form.
[9] Apparently her son's birth certificate is written in Sinhalese, which is not the applicant's language. The CRDD made an adverse finding of credibility based on her evidence at the hearing that it had been in her suitcase when she entered Canada and that she had not shown it to the immigration authorities or included any reference to it on her personal information form. To base a credibility finding on the answers makes no sense, because the answers she gave are consistent with what she might have been expected to do with her son's birth certificate.
[10] The adverse conclusion of the CRDD based on the applicant's son's birth certificate is manifestly unreasonable and cannot stand.
Credibility - photocopies of documents
[11] The CRDD noted the claimant's inability to explain the acts of her agent in providing incomplete photocopies of some documents. There is no reason why her lack of knowledge on this point should reflect negatively on her credibility.
Internal flight alternative
[12] The CRDD's erroneous findings on credibility formed a significant basis for their conclusion as to the existence of an internal flight alternative, because it led to their disbelief of the story she tells of her arrest by the Sri Lankan police in Colombo.
[13] Counsel for the applicant also submitted that the CRDD should have regard to humanitarian and compassionate considerations in considering the reasonableness of an internal flight alternative. He argues that Colombo is not a reasonable internal flight alternative for the applicant, given her age and the fact that she has family in Canada but none in Colombo. In this regard he relies on Ramanathan v. Minister of Citizenship and Immigration (August 19, 1998), IMM-5091-97, in which Cullen J. held that it is wrong to exclude humanitarian and compassionate grounds when considering the question of internal flight alternative.
[14] Counsel for the Minister argues that the Ramanathan case is not consistent with the decision of the Federal Court of Appeal in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706. I do not agree. Rasaratnam says only that an internal flight alternative exists if it is not unreasonable, in all the circumstances, for the applicant to seek refuge there. It leaves open the question of what factors may properly be taken into account in considering whether it is reasonable for a particular Sri Lankan citizen to seek refuge in Colombo.
Decision
[15] The decision of the CRDD is quashed. The applicant's refugee claim is referred back to the CRDD for reconsideration by a different panel. This is not an appropriate case for a certified question.
"Karen R. Sharlow"
JUDGE
TORONTO, ONTARIO
June 17, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3589-98
| STYLE OF CAUSE: GNANASAKUNTHALA MYILVAGANAM |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: WEDNESDAY, JUNE 16, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: SHARLOW J.
DATED: THURSDAY, JUNE 17, 1999
APPEARANCES: Mr. L. Francis Xavier
For the Applicant
Ms. Marissa Beata Bielski
For the Respondent
SOLICITORS OF RECORD: L. Francis Xavier
Barrister & Solicitor
2401 Eglinton Avenue East
Suite 210
Scarborough, Ontario
M1K 2M5
For the Applicant
| Morris Rosenberg |
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990617
Docket: IMM-3589-98
Between:
| GNANASAKUNTHALA MYILVAGANAM |
Applicant
| - and - |
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER