IMM-3378-97
MANKAYARKARASI MYLVAGANAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HELD BEFORE: Mr. Justice Muldoon
HELD AT: Federal Court of Canada
330 University Ave., 8th floor
Courtroom 1
Toronto, Ontario
HELD ON: October 20, 1998
REGISTRAR: Sandra McPherson, Ms.
REPORTER: Robert Dudley, CVR
RD:pmm IMM-3378-97
FEDERAL COURT OF CANADA
(TRIAL DIVISION)
B E T W E E N:
MANKAYARKARASI MYLVAGANAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HELD BEFORE: Mr. Justice Muldoon
HELD AT: Federal Court of Canada
330 University Ave., 8th floor
Courtroom 1
Toronto, Ontario
HELD ON: October 20, 1998
REGISTRAR: Sandra McPherson, Ms.
REPORTER: Robert Dudley, CVR
APPEARANCES:
MAUREEN SILCOFF, MS. -- For the Applicant
STEPHEN GOLD, ESQ. -- For the Respondent
I N D E X O F P R O C E E D I N G S
Pages
Reasons for Judgment .......................... 1 - 5
--- Upon commencing at 2:40 p.m.
REASONS FOR JUDGMENT:
| The Court is prepared to give Reasons now in this matter of Mankayarkarasi Mylvaganam, the file number is IMM-3378-97, and the CRDD, Convention Refugee Determination Division's file number is U96-05831. |
| Basically, the problem resides in this passage from the Convention Refugee Determination Division's Reasons. It says at page 8: |
| "...The panel concludes that the claimant has a viable IFA in Colombo. The government has brought the City of Colombo under relative security from LTTE terrorists such that the claimant would not face persecution at the hands of the LTTE in Colombo. The documentary evidence demonstrates that the government has vastly improved its human rights record, in spite of the past 13 years of abuses. Having regard to the significant population of Tamils within Colombo and the further fact that the claimant has family abroad that could render some assistance, it would not be unreasonable for this claimant to reside in Colombo. There is no indication that this 62-year old woman would be perceived to be an LTTE cadre by the authorities..." |
| That is correct up until the very last, because the CRDD had already held and conceded that this applicant had a well-founded fear of persecution in the north; Vavuniya, for example, or Jaffna, or wherever she came from. |
| And so she cannot go north except at considerable risk and a real chance of persecution because she has demonstrated a well-founded fear of it in the north. |
| So the Board tells us how wonderful things are in Colombo for the Tamil community there, but it overlooks... rather, it takes account of, mentions, pays lip service, mouths the fact that the authorities have demanded that this person go north and not stay in Colombo, and then it says, "Oh, well, she can stay in Colombo." |
| Well, there is an apparent and obvious contradiction. It places the applicant in a conundrum. If she stays in Colombo, she will be breaking the law. She has been ordered to go north. It is not beyond the realm of probability, as opposed to possibility, and it is surely no conjecture that if she stayed in Colombo, she will be required to go north; they will take her north; they will force her to go north, because that is what the government of Sri Lanka, through its military and police agencies, tells her she must do. |
| So she cannot stay in Colombo, which is what the Board offers her, as an internal flight alternative. |
| The conundrum is so obvious that it is, indeed, in the Court's view, a bad decision by the CRDD. It is so obvious that if the member making the decision did not notice it, it is unfortunate that the Court finds it perverse; it is that obvious. |
| Now, counsel for the Minister has raised every possible defence of that decision he can, in all honesty. They are raised, and he has articulately defended those notions, but in the end, neither he nor the Court can get the applicant out of her conundrum. |
| The CRDD says, "Stay in Colombo. You are safe there." She says, "Stay in Colombo? They'll send me north, where I have a well-founded fear of persecution." And that is the problem, and that is why this decision, number U96-05831, of the Convention Refugee Determination Division, dated in Toronto July 9, 1997, must be quashed and set aside, and the matter will be referred back to the Convention Refugee Determination Division to be heard, if necessary...if the Minister thinks it is necessary; maybe it is not...but it should be sent back to be determined by a differently constituted panel, which may be, if she consents, one member or, as is usual, two members and one will see what the outcome is there, but she should be entitled to make all representations as if it were a panel of first instance, and conditions up to the present ought to be taken into account, whatever they are. The Court does not know how that will affect the applicant, but obviously if the matter is going to be heard by a newly constituted panel, it ought to be heard by a newly constituted panel on current conditions. |
| And so the Court shall order. Are there any questions? Counsel. |
| MS. SILCOFF: No. Thank you, My Lord. |
| MR. GOLD: Thank you, My Lord. |
| HIS LORDSHIP: Thank you. Thank you, counsel. I may say, in passing, that I think neither side has any reason to be dissatisfied with the quality of counsel services received today. |
--- Upon adjourning at 2:50 p.m.
| I hereby certify the foregoing to be a true and accurate transcription of the above noted proceedings held before me on the 20th day of October, 1998 and taken to the best of my skill, ability and understanding. |
| } |
| } Certified Correct: |
| } |
| } |
| } |
| } |
| } |
| } _______________________________ |
| } Robert Dudley |
| } Certified Verbatim Reporter |
| } (416) 360-6117 |