Date: 20040915
Docket: IMM-7625-03
Ottawa, Ontario, September 15, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
PEIRIS, SAMSON (WARNAKULASURIYA)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Samson Peiris is a 25 year old Sinhalese citizen of Sri Lanka. He is also gay. Mr. Peiris claims to fear persecution at the hands of his parents, his relatives, his priest and the police because of his sexual orientation. Although the Immigration and Refugee Boardappears to have accepted that Mr. Peiris is homosexual, the Board rejected his refugee claim, finding that although he had been rejected by his family, friends and clergy because of what the Board called his "lifestyle choice", this did not amount to persecution.
[2] The Board further found that Mr. Peiris had not been targeted by the police because of his sexual orientation, and that, in any event, an internal flight alternative (or "IFA") was available to him in Colombo.
[3] Mr. Peiris seeks to have the Board's decision set aside, asserting that it misconstrued some evidence and ignored other evidence, tainting the Board's finding that Mr. Peiris was not persecuted by the police because of his sexual orientation. He further submits that the Board's finding as to the availability of an IFA was perverse.
Mr. Peiris' Allegations
[4] Mr. Peiris says that he told his family and friends that he was gay in March of 2001, and that he was forced to leave the family home a month later. Along with about 30 others, Mr. Peiris formed a group called the Youth Association. One of the purposes of the group was to try to educate members' loved ones about homosexuality. The Association held a meeting in September or October of 2001, to which the families and friends of members were invited. However, the members were unsuccessful in gaining the acceptance of those close to them.
[5] The group did not attempt another meeting with non-members, but did continue to meet in secret. During these get-togethers, Mr. Peiris says that the members would smoke, drink and watch videos.
[6] In December of 2001, Mr. Peiris states that thugs came to the house where the Youth Association met. The members were beaten and the place was ransacked. According to Mr. Peiris, Association members were told by their assailants that they were spreading an evil lifestyle, and that they would be "wiped out" if they continued with their homosexual activities.
[7] Mr. Peiris says that group members tried to report the incident to the police, but the police refused to take the complaint. Rather than help the victims of the attack, Mr. Peiris says, the police threatened to charge the members of the Association under Sri Lanka's anti-sodomy law for carrying out illegal activities.
[8] Despite the attack, meetings of the Association continued to take place. Mr. Peiris says that the police were aware of this, and that, in September of 2002, the police raided the Association's meeting place. While the other Youth Association members were able to escape, Mr. Peiriswas severely intoxicated at the time, and was captured by the police.
[9] Mr. Peiris says that he was questioned by the police about the other members of the Association. He was also beaten, and was taken out and paraded in front of his neighbours, who subjected him to ridicule. Prior to his release from police custody, Mr. Peiris says that he was warned that if he was caught again, he would be charged criminally and sent to jail for five years. Shortly after this incident, Mr. Peiris left Sri Lanka.
The Board's Decision
[10] In a relatively brief decision, the Board found that Mr. Peiris' story of persecution by the police because of his sexual orientation was not credible in light of the documentary evidence regarding conditions within Sri Lanka for gays and lesbians. According to the Board, this evidence indicated that although there was a law on the books prohibiting homosexuality in Sri Lanka, the law was not enforced by the police.
[11] The Board stated that the only "police incident" took place a full year after the initial meeting held by the Youth Association in September of 2001. In these circumstances, the Board did not find it credible that the police were targeting Mr. Peiris because of his homosexuality. Instead, the Board found that the police raided the clubhouse, because the members were being rowdy.
[12] Finally, the Board found that Mr. Peiris could easily relocate to Colombo, where there is a gay community and established support organizations for gays and lesbians.
Issues
[13] Although Mr. Peirisraises a number of issues, in my view there are two which are determinative of this application. These are:
1. Did the Board err in ignoring or misconstruing the evidence? and
2. Is the Board's IFA finding patently unreasonable?
Did the BoardErr in Ignoring or Misconstruing the Evidence?
[14] It is not entirely clear from the Board's decision what evidence it accepted and what it rejected. Certainly, the Board's credibility findings are not stated in the 'clear and unmistakeable terms' mandated by the Court of Appeal in Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199.
[15] However, from my reading of the decision, it appears that the Board was prepared to accept that Mr. Peiris is indeed gay. It also appears that the Board accepted that the events that Mr. Peiris says occurred actually took place.
[16] The Board found that Mr. Peiris failed to establish that there was a connection between the September, 2002 raid on the Youth Association premises and his homosexuality. In coming to this conclusion, the Board makes no mention of any of Mr. Peiris' testimony regarding the December, 2001 attack on the Youth Association clubhouse, nor does it mention the unsuccessful attempts by the Association members to obtain police protection. In particular, there is no mention of Mr. Peiris' claim that the police threatened to charge the members of the Association for carrying out illegal activities.
[17] While the Board may be presumed to have considered all of the evidence, in this case the Board failed to mention evidence that was central to Mr. Peiris' argument that he was targeted for police persecution because of his sexual orientation. Adopting the reasoning of the Court of Appeal in Cepeda-Guiterrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.), I am prepared to infer that the evidence was ignored.
[18] There is also no evidentiary foundation to support the Board's finding that the raid on the Association's clubhouse in September of 2002 occurred because the members of the Association were being rowdy. It is difficult to see how the Board came to this conclusion, given Mr. Peiris' testimony that the clubhouse was in a remote area by the sea, far away from any other homes.
[19] As a result, even taking into account the high degree of deference owed to the Board with respect to findings of fact, I am of the view that the Board's finding that there was no nexus between the September, 2002 raid and Mr. Peiris' sexual orientationcannot stand.
Is the Board'sIFA finding patently unreasonable?
[20] The Board disposed of the IFA issue in three lines, concluding that Mr. Peiris had an internal flight alternative in Colombo because of the existence of a homosexual community and associated support organizations in that city.
[21] The documentary evidence that was before the Board supports the finding that there is a homosexual community in Colombo, as well as support organizations for gays and lesbians. However, the evidence also shows that these organizations are frequent police targets, and that members are physically and verbally abused by the police. Further, although the law banning sodomy is not enforced, the police often use the existence of the law to blackmail homosexuals.
[22] I am concerned about the failure of the Board to mention any of this evidence in its decision. It was open to the Board to weigh the evidence and to reject it. However, given the importance of this evidence to a central issue in this case, it was not open to the Board to simply ignore it.
[23] For these reasons, I am of the view that this application must be allowed.
Certification
[24] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination.
2. No serious questionof general importance is certified.
"Anne L. Mactavish"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-7625-03
STYLE OF CAUSE: PEIRIS, SAMSON (WARNAKULASURIYA)
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY SEPTEMBER 1, 2004
REASONS FOR ORDER
AND ORDER BY: Mactavish, J.
DATED: SEPTEMBER 15, 2004
APPEARANCES BY: Mr. Micheal Crane
For the Applicant
Ms. Allison Phillips
For the Respondent
SOLICITORS OF RECORD: Mr. Micheal Crane
Barrister & Solicitor
166 Pearl Street, Suite 100
Toronto, Ontario
M5H 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20040901
Docket: IMM-7625-03
BETWEEN:
SAMSON (WARNAKULASURIYA) PEIRIS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER